MOTION FOR SUMMARY RELIEF GRANTED IN PART: December 22, 2017
CBCA 5089
MICHAEL JOHNSON LOGGING, 
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jon E. Cushman of Cushman Law Offices, P.S., Olympia, WA, counsel for Appellant.
Deanna J. Chang, Office of the General Counsel, Department of Agriculture, Portland,
OR, counsel for Respondent.
Before Board Judges SHERIDAN, ZISCHKAU, and O’ROURKE.
O’ROURKE, Board Judge.
Michael Johnson Logging (Johnson or purchaser) timely appealed from the denial by
a United States Forest Service contracting officer of a certified claim for about $1.1 million
under a timber sale contract.  Johnson seeks damages, including lost profit, for lost
productivity, damage to its equipment, unreasonable suspensions of work, and “business
devastation.”  In denying the claim, the contracting officer also asserted a government claim
of $261.86.  The respondent, Department of Agriculture (USDA), the Forest Service’s parent
agency, seeks summary relief upon Johnson’s damages claims.  We grant USDA’s motion
in part.  Johnson cannot recover on its business devastation claim.  We otherwise deny the
motion.


CBCA 5089 2
Background
I. The Contract and the Alleged Breaches
To decide this motion, we rely on contract-related documents submitted by USDA
(without objection by Johnson) for the appeal file under Board Rule 4 (48 CFR 6101.4
(2016)), testimony by deposition and affidavit, and applicable law.  
A.  Relevant Contract Provisions
USDA awarded the Big Shrew South timber sale contract to Johnson, a small
business, in September 2007.  The Forest Service estimated in the contract that the sale area
included approximately 25,397 tons of timber to be cut over a thirty-nine-month period in
the Olympic National Forest in Washington State.  The contract contained numerous
specifications related to the harvesting of timber and the preservation of the forest. 
Requirements pertinent to this motion included: (1) obtaining approval for the locations of
all skid roads and landings prior to their use and construction;1 (2) using existing skid trails
where they met spacing guidelines; (3) constructing landings that did not exceed the size
needed for efficient skidding and loading operations; (4) marking and cutting trees; (5) and
minimizing damage to the forest.  The contract also authorized USDA to “give Purchaser
notice of [a] breach” and to suspend purchaser’s operations “[i]n the event Purchaser
breaches any of the material provisions of the contract.”
B.  Corridor and Landing Requirements; Equipment Damage
Tensions arose during performance due to the parties’ seemingly competing objectives
of harvesting timber and preserving the forest.  In its certified claim to the contracting
officer, Johnson alleged that when preparing for work on the sale, it proposed straight
corridors for skid trails, and designed landings that were sufficiently large to ensure
efficiency and safety.  Johnson further alleged that the Forest Service made adjustments to
its skid trails and landings, such that Johnson had to zigzag around saved trees and work in
landings that were too small.  Johnson claimed that these adjustments made the job more
time-consuming and more expensive.  Johnson also claimed that the irregular corridors
1 In their briefs, the parties interpret the contract as requiring agreement as to the
locations of skid trails and landings.  We disagree.  The special provisions identified in
Division C of the contract supplement the standard provisions listed in Division B. 
Subsection C6.42 modifies item B6.422, requiring the Forest Service’s approval of the
locations.

CBCA 5089 3
caused excess wear and tear on its equipment, resulting in costly damage to the skidder and
shovel, in particular.  
Although Forest Service personnel admitted to making the adjustments, they stated
that they were made on an occasional basis and only when necessary to avoid cutting legacy
trees or damaging the forest.  They further pointed out that Johnson and the Forest Service
entered into an operational tree agreement, which permitted Johnson to cut unmarked trees
for operational or safety reasons.  USDA records also showed that whenever Johnson asked
the Forest Service to mark and cut additional trees in order to widen landings and skid trails,
the Forest Service complied in almost every case.  
C.  Suspensions of Work
During performance of the contract, the Forest Service suspended Johnson’s
operations three times for a combined total of twenty-seven days.  Two of the suspensions
were imposed for cutting the wrong trees; the third was for failure to control run-off and
prevent erosion.  Johnson did not challenge the suspensions at the time they were imposed. 
Instead, Johnson took all required steps to remedy the alleged breaches.  In its certified claim,
however, Johnson alleged that the suspensions were unwarranted and unreasonable.  
USDA maintained that the suspensions were permitted under the contract, and that
they were reasonable since, in each instance, Johnson’s operations constituted “a threat of
immediate and irreparable damage to National Forest resources.”  Also, they were only
partial suspensions.  The contracting officer suspended cutting for the first two breaches, but
permitted skidding and hauling to continue.  For the third breach, the suspension was limited
to all logging activities in a particular subdivision due to heavy rains and flooding in that
area.  Johnson was permitted to move its crew and equipment to an area more suitable for
wet weather operations.
D.  The Requirement to Use Existing Skid Trails
The contract required Johnson to use existing skid trails where they met spacing
guidelines.  According to Johnson, existing skid trails were prone to flooding because they
were significantly compacted and often located at lower grades.  Johnson contends that had
it been allowed to cut new skid trails at higher elevations, it would not have been in breach
or received a suspension, and operations could have continued.  It is unclear whether Johnson
raised this issue prior to the suspension.  There is evidence, however, that the parties
discussed locating new skid trails to higher ground after the breach.  Johnson claimed it lost
four-and-a-half weeks of work due to the third suspension.  Johnson claimed damages for the
daily rental rate of its idled equipment (the skidder and the shovel) for that period of time.

CBCA 5089 4
E.  Contract Extensions and Termination
The original period of performance of the contract was a little over three years.
Johnson requested and received more than five years of additional time to complete
performance.  All of the additional time was authorized by USDA under various terms of the
contract, such as Market-Related Contract Term Additions (MRCTA), which permitted
Johnson to stop work without penalty until the market value of timber increased, or  Contract
Term Adjustments (CTA) for weather-related delays, which also carried no penalties.  
Unlike an MRCTA or a CTA, a Contract Term Extension (CTE) requires financial
consideration in the form of an extension deposit, since it is granted at purchaser’s request. 
In September 2013, Johnson requested and received a one-year CTE.  Prior to granting the
CTE, and in accordance with the requirements of the contract, the Forest Service conducted
a re-appraisal of the timber to calculate the extension payments. The Forest Service
miscalculated the amounts and substantially overcharged Johnson ($11.90 per ton versus
$2.30 per ton).  Johnson complained about the rate, but the miscalculation was not
acknowledged until nearly two years later, after Johnson filed its claim.  Johnson was then
refunded $61,013.88 for excess extension deposits and $10,599.44 for excess stumpage. 
Johnson was also awarded interest in the amount of $2162.16 on the extension deposits. 
The contract officially terminated in February 2016.  At that time, Johnson had
harvested a total of 20,647 tons of timber, approximately 6102 tons less than the contract
estimate.  In its certified claim, Johnson alleged that the Forest Service’s miscalculation of
the extension deposits, and imposition of the purportedly unreasonable suspensions, crooked
skid trails, too-small landings, and the requirement to use existing skid trails, all caused
Johnson to lose revenue, and ultimately devastated its business. 
II. The Claim and the Appeal
In June 2015, Johnson submitted a certified claim for damages totaling $1,112,417. 
Johnson alleged, without citing specific contract provisions, that unreasonable management
decisions throughout the course of performing the sale contract restricted its ability to
productively log the sale.  The claimed damages included $741,837 for lost productivity (due
to the need to use crooked skid trails and small landings), $22,000 for damage to Johnson’s
equipment, $54,000 for inadequate skid trails, $52,600 for unreasonable suspensions of work,
lost profit of $91,980 on unharvested timber, and business devastation damages of $150,000. 
The Forest Service contracting officer denied the claim in November 2015 and asserted a
government claim of $261.86, based on the difference between the amount she concluded
Johnson was owed in interest on excess extension deposits ($2162.16) and a Forest Service
claim of $2376.75 plus interest for rework on flagging and tagging boundaries. 

CBCA 5089 5
Johnson filed this appeal in November 2015.  Its fourteen-paragraph complaint, filed
in February 2016, has no separate counts.  The complaint echoes the amounts sought in the
certified claim and denies that Johnson is liable for the cost of extra work by the Forest
Service, as “any remarking done by the [F]orest [S]ervice was within the scope of its
obligations and was the result of prior breaches by the Forest Service.”
Discussion
I. Summary Relief Standard
USDA filed a motion for summary relief, arguing that Johnson can recover no
damages.  USDA’s motion does not address Johnson’s appeal from the government claim
of $261.86.  We may grant USDA’s motion only if USDA is entitled to relief based on the
undisputed facts “as a matter of law.”  Rule 8(g)(1); JJA Consultants v. Department of the
Treasury, CBCA 432, 07-2 BCA ¶ 33,632, at 166,575.  A party opposing summary relief 
“may not rest upon the mere allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial.”  First National Bank of Arizona
v. Cities Service Co., 391 U.S. 253, 288 (1968) (quoting Fed. R. Civ. P. 56(e)); see Karp v.
General Services Administration, CBCA 1346, 11-1 BCA ¶ 34,716, at 170,934 .  We may
summarily resolve issues of contract interpretation, provided we need not resolve disputes
of fact.  E.g., P.J. Maffei Building Wrecking Corp. v United States, 732 F.2d 913, 916 (Fed.
Cir. 1984). 
II. The Forest Service’s Contractual Obligations
USDA’s primary argument is that Johnson cannot recover because “Johnson fails to
allege that the Forest Service in any way breached the terms of the Contract.”  In particular,
USDA argues that Johnson agreed in advance, as the contract required, to the locations of
all skid trails and landings, and cannot challenge those locations now, and that the Forest
Service “properly exercised [its] discretion [under the contract] when it suspended
[Johnson’s] operations after [Johnson’s] breaches” of the contract.  Absent any basis in the
contract to award damages pertaining to skid trails, landings, or suspensions of work, USDA
argues, we must deny the damages sought in the appeal.    
We disagree with USDA.  Johnson does not argue that the Forest Service breached
an express duty under the contract.  Rather, in response to the motion, Johnson argues that
the Forest Service abused its discretion and, in doing so, breached the implied duty of good
faith and fair dealing.  A breach can be found if the Government hinders performance of the
other party through “actions that unreasonably cause delay or hindrance to contract
performance.”  C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1542 (Fed. Cir. 1993);

CBCA 5089 6
see WRB Corp. v. United States, 183 Ct. Cl. 409, 509 (1968) (where a breach was found
when various inspectors inspected the same work, causing conflicting approvals and
disapprovals); see also Tecom, Inc. v. United States, 66 Fed. Cl. 736, 770 (2005) (citing
Lewis-Nicholson, Inc. v. United States, 550 F.2d 26 (Ct. Cl. 1977) (where the Government
negligently made errors in placing stakes and failed to plan in advance for a project), and
F.H. McGraw & Co. v. United States, 130 F. Supp. 394 (Ct. Cl. 1955) (where the
Government made untimely changes to specifications)).  
Neither Johnson’s claim nor its complaint alleged a violation of the duty of good faith
and fair dealing.  Johnson first raises this breach theory in response to USDA’s motion. 
However, because we find that the facts alleged in the claim and the complaint are the same
operative facts as those supporting the breach, this claim is not new.  Here, Johnson is
merely attaching a legal label to the same allegations raised in the claim and the complaint. 
VSE Corp. v. Department of Justice, CBCA 5116 (Dec. 8, 2017); see Scott Timber Co. v.
United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (permitting adjudication of a claim that
arises from the same operative facts and requests the same relief as a claim presented to a
contracting officer, even if it alleges a slightly different legal theory); see also Transamerica
Insurance Corp. v. United States, 973 F.2d 1572, 1578 (Fed. Cir. 1992), (“[C]ertain ‘magic
words’ need not be used and . . . the intent of the ‘claim’ governs.”).  
Moreover, Johnson cites evidence upon which a rational fact finder could find that the
Forest Service breached the implied duty of good faith and fair dealing by unreasonably
hindering Johnson’s performance.  In particular, Johnson cites deposition testimony in which
Forest Service personnel admitted to making adjustments to Johnson’s skid trails and
landings.  Johnson also cites testimony by its proprietor, Mr. Michael Johnson, who testified
that the adjustments were unreasonable in that they changed the straight paths to crooked
paths, which delayed his operations and damaged his equipment.  
Johnson also points to the same deposition testimony, as well as to multiple inspection
reports and USDA policies, in arguing that the three suspensions were unreasonable under
the circumstances, and that the requirement to use existing skid trails interfered with its
performance.  Mr. Johnson testified that the first suspension was unnecessary and excessive
since only five unmarked trees were cut.  With respect to the second suspension, Johnson cut
twenty-nine unmarked trees. In his deposition testimony, Mr. Johnson stated that a
suspension was also unnecessary in this instance because the error was self-reported.  Finally,
Mr. Johnson testified that existing skid trails were prone to flooding and resulted in a
suspension, which could have been avoided had Johnson been able to cut new skid trails at
higher elevations.  

CBCA 5089 7
In light of the aforementioned evidence, we must reject USDA’s argument that
Johnson has not put forth any evidence of breaches.  As we previously noted, to survive a
motion for summary relief, the opposing party need only put sufficient facts in evidence to
show that there are material facts in dispute.  Johnson has done that here by presenting
evidence of a possible breach of contract by the Forest Service.  The evidence presented is
sufficient to get Johnson to a hearing, where we have the opportunity to weigh all of the
evidence presented to determine whether the contract was, in fact, breached.  
III. Business Devastation
USDA argues that Johnson’s $150,000 claim for business devastation has no basis in
law or fact.2  We agree.  A claim for damages for business devastation is similar to a
consequential damages claim where a contractor asserts that the Government’s actions
caused the destruction of its business.  The concept of consequential damages in contract law
involves consideration of the type of loss foreseeable by the contracting parties at the time
the contract is executed, not at the time of the breach.  Bohac v. Department of Agriculture,
239 F.3d 1334, 1340 (Fed. Cir. 2001); see also Prudential Insurance Co. of America v.
United States, 801 F.2d 1295, 1300 (Fed. Cir. 1986).  While contractors may recover
damages resulting from “the natural and probable consequences of the breach complained
of . . . damages remotely or consequently resulting from the breach are not allowed.” 
Ramsey v. United States, 101 F. Supp. 353, 357 (Ct. Cl. 1951).  
Although not categorically disallowed, contractor claims for consequential damages
premised on the destruction of the entire business or lost business opportunities have been
denied where they failed to show a nexus between the damages claimed and the breach
alleged.  See, e.g., Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741 (1980) (damages
denied for contractor’s inability to secure bonds necessary to obtain new work); see also
David J. Tierney, Jr., Inc., GSBCA 7107, et al., 88-2 BCA ¶ 20,806, motion for
reconsideration denied, 88-3 BCA ¶ 20,906, (claims denied for the collapse of its business
and losses incurred on unrelated jobs).  In Nevada Skylines, Inc., AGBCA 92-167-1, 92-3
BCA ¶ 25,089, motion for reconsideration denied, 93-1 BCA ¶ 25,352 (1992), a timber
contractor sought consequential damages for the Government’s alleged failure to timely
release its performance bond so that it could bid on other jobs.  In that case, the Board denied
the requested damages because it found them too remote and speculative to be in the
contemplation of the parties at the time the contract was made.  
2  The complaint simply states, “Based on a three-year index of annual earnings, the
business devastation claim is $150,000.”

CBCA 5089 8
More recently, we denied consequential damages for the short sales of both a logger’s
home and timber sorting yard.  The denial was based on a lack of evidence linking those
transactions to the performance of the contract at issue.  Bob L. Walker v. Department of
Agriculture, CBCA 2131, et al., 18-1 BCA ¶ 36, 921, at 179, 879 (2017) (“[T]he lost profits
of . . . collateral undertakings, which the [claimant] was unable to carry out, are too remote
to be classified as a natural result of the Government’s [breach].”) (quoting Ramsay, 101 F.
Supp. At 357); and (“[L]osses of net worth are generally speculative damages and not
recoverable.”) (quoting Data Enterprises of the Northwest v. General Services
Administration, GSBCA 15607, 04-1 BCA ¶ 32,539, at 160,964).   In its brief, USDA argues,
and we agree, that “[t]he profits Johnson might have earned independent of the contract are
not . . . directly related to [this] contract,” as Johnson has provided no evidence of such an
impact beyond mere speculation.  We find the business devastation claim to be too remote
and further determine that USDA is entitled to summary relief on this claim as a matter of
law.  
IV. Damages
Because we deny USDA’s motion for summary relief on the basis that Johnson has
put forth sufficient evidence of a possible breach of contract by the Forest Service, we need
not address in great detail the remaining allegations concerning the validity of Johnson’s
damages claims.  USDA argues that Johnson failed to provide any evidence of lost
productivity and lost earnings.  We disagree.  
At his deposition, Mr. Johnson testified that problems with skid trails interfered with
the logging and caused excessive wear and tear on Johnson’s equipment.  Mr. Johnson also
testified that at least one suspension could have been avoided had the Forest Service allowed
Johnson to cut new skid trails at higher elevations.  While not necessarily persuasive or
conclusive, this is enough evidence on which to proceed to a hearing on damages.  See Karp,
11-1 BCA at 170,934. 
V. USDA’s Counterclaim
In the final decision of the contracting officer, USDA raised a counterclaim in the
amount of $261.86 based on additional costs it absorbed for flagging and re-marking
boundaries.  Johnson responded to the counterclaim in its complaint, denying any liability
for the same.  However, USDA’s counterclaim is not addressed by either party in this motion,
or in any motion currently before the Board, so we need not decide it here.

CBCA 5089 9
Decision
The motion for summary relief is GRANTED IN PART as to the business
devastation claim, and denied as to all remaining claims.  Since USDA did not address its
claim against Johnson in the motion, we do not decide it here.  
___________________________
KATHLEEN J. O’ROURKE
Board Judge
We concur:
_________________________ ___________________________
PATRICIA J. SHERIDAN JONATHAN D. ZISCHKAU
Board Judge Board Judge