# In the United States Court of Federal Claims
No. 12-59C (Filed: February 10, 2015)

* * * * * * * * * * * * * * * * * * * * * * WOODIES HOLDINGS, LLC,

Plaintiff ,

v. THE UNITED STATES,

Defendant

. * * * * * * * * * * * * * * * * * * * * * * C ontract; Trial; Mail Box Rule.

Lynn E. Calkins, Washing t o n , D

. C., w ith whom w as Thomas J. McIntosh , Washington, D.C., for plaintiff.

Martin M. Tomlinson , United States Departm ent of Justice, Civil Division, W ashington, D.C., with whom were Franklin E. White, Jr. , Assistant Director, Robert E

. Kirschman, J r

. , D irector, and Joyce R. Branda , A cting Assistant Attorney General, for defendant.

_________ OPINION

_________

BRUGGINK, Judge

. This case presents a dispute b etween Wo o dies Holdings, LLC (“Woodies” or “plaintiff”) and the United States, acting through the General Service A dm inistration (“GSA”), about whether GSA is obligat e d b y th e t e rm s o f the lease to reim

burse Woodies for a p ortion of real estate taxes Woodies p a i d to the District of Colum bia in 2007 and 2008. In a previous opinion disposing o f cross-m otions for summ ary judgm ent, we held that G S A and Woodies a gree d upon a value to be used for the base year figure in the r eal estate tax a djustm ent calculation. Woo di es Holdings, LLC v. United States , 115 Fed. Cl. 204 (201 4 ). T hat holding established G SA’s obligation t o pay plaintiff for the governm ent’s portion of the r eal e state taxes for the first partof l ease year 2 007-2008. 1 Id. at 211-15. With r es p e c t to the second part of

lease year 2007-2008, we reserved for trial the question of whether W oodies’ representative tim e ly submitted to GSA the docum e nts showing that Woodies had paid the District of Colum bia for its Septem

ber 2 008 r e al e s t ate taxes, thereby satisfying the l ease’s notification requirem ent. On Decem ber 1, 2014,
we had a trial on this limited issue. For the reasons set out b elow, we hold that Woodies tim ely s ubm itted the notice and i s therefore entitled to recover $37,837.34 for GSA’s portion of the tax.

BACKGROUND 2

The 6 0 -day period for tim e ly s ubm ission of an invoice and proof of paym ent is central t o resolution o f this case. Clause 3. 2 o f th e l e a s e at issue provides the following:

D. T he Lessor shall furnish the Contracting Officer with copies of all no t i c e s which m ay affect the valuation of said land and buildings for real e s t ate taxes thereon, as well as all notices of
a tax credit, all tax bills, and all paid tax receipts

. . . . All such docum ents are due within 10 calendar days of r eceipt except that the proper invoice and evidence of paym ent shall be submitted within 60 calendar days after the date the tax p aym e nt i s due from the Lessor to the t ax i n g authority. FAILURE TO SUBMIT THE PROPER INVOICE AND EVIDENCE OF PAYMENT WITHIN SUCH TIME FRAME S HALL BE A WAIVER OF THE RIGHT TO RECEIVE PAYMENT R E S U L T I N G F R O M A N I N C R E A S E D T A X ADJUSTMENT UNDER THIS PARAGRAPH

.

1 There are several tim e c ycles that run in the background of this case: 1) the lease year runs from June 1 to May 31; 2) the D istrict of C olum bia’s tax y ear runs f rom October 1 t o Septem

ber 30; 3 ) the District of Colum bia bills plaintiff for real estate taxes twice a year, once o n M arch 31 f or the period of October 1 through March 31 and then on Septem ber 1 5 for the period of April 1 through Septem

ber 30; and 4) pursuant t o the lease, plaintiff m ust s ubm it to GSA the tax invoice and e vidence of paym ent no later than 60 days after the paym ent is due.

2 A m ore com

plete recitation of the f

acts is available in our previous opinion, which is reported at 115 Fed. Cl. 204.

2JX 1 at WHL 061 (em phasis in original). 3

At trial, we heard from two witnesses: Shahla Motam e d i and Joel Berelson. Ms. Motam edi was Woodies’ sole representative and real property adm inis tr at o r f

or the lease during the relevant period. 4 As the lease adm inistrator, M s

. M otam edi was tasked w ith securing com p liance wi th the term s of the lease, ensuring that the land owner m aintained the building, and verifying that the tenant com plied with its obligations under the lease, such as paying rent. Ms. Motam edi was a lso authorized to bill and seek paym ent f rom t e n ants for increases i n operating costs, annual rent, or t axes. W e fin d M s

. Motam edi to b e credible, trustworthy, knowl e d g e able about lease adm inistration with GSA, detail-oriented, and m ethodically organized.

M s. M o tam edi testified that she wrote a letter to GSA on or befo r e Novem ber 13, 2008, b ut bearing that date, for the purpose of submitting proof that Woodies paid the Septem ber 1 5, 2008 r eal estate tax bill. It w a s sent using certified m ail. According to Ms. Motam edi, she p repared the letter for
m ailing by typing the c ertified m a il tracking num ber on the t o p of the letter,
m aking s e veral copies fo r s ending and f iling, placing the letter and attached docum ents in an envelo p e , a ddressing and sealing the envelope, affixing the cards for certified m ail with return receipt request to the envelope, 5 sticking the certified m ail tracking num ber on the green return receipt request, printing the

3 “JX” refers to the Joint Exhibits adm itted into evidence at trial and the page num ber refers to the bates num ber stam ped on the docum e nt.

4 Ms. M otam edi is actually em ployed by Douglas Developm ent Corporation, which is a real estate m an a g e m e nt com pany that was hired to m anage the Woodies building.

5 Ms. Motam e di testified a bout her use of services offered by the United States Postal Service (“Postal Service”) that provide th e s en d e r a record of m ailing and delivery. She frequently utilized certified m ail with an additional return receipt request. In o rder to signify that a letter is certified, part of a white c ard is attached to the envelope that b e ar s a b ar code and tracking num ber, while the other part of the card, which includes the repli c ated tracking num ber, is retained by the se n d e r

. Ms. Motam edi also used the return receipt service, whereby the Postal Service will furnish evidence of delivery on a green card that was attach e d to the original envelope, which bears the sam e certified tr acking num

ber, was signed for upon delivery, and returned t o the sender through the m ail.

3appropriate amount of postage at the office postage machine, stamping the

envelope with the postage, and, finally, placing the envelope in the outgoing mail tray, 6which was next to the postage machine. After she completed this mailing process, Ms. Motamedi stapled the certified mail receipt to a copy of the letter and filed it. Regarding the internal office mailing tray, Ms. Motamedi testified that there are two responsible and long-tenured employees who pick up the mail twice daily from the tray. The first pickup is at lunchtime, and this batch of mail is brought to the lobby of the building to an official United States Postal Service (“Postal Service”) mailbox. The letters that accumulate after lunch are picked up later in the afternoon and brought to a nearby blue public mailbox. Letters are not left in the outgoing mail tray overnight. In Ms. Motamedi’s experience, this internal mailing system is reliable and has never been the source of any problems in the past. Ms. Motamedi was never presented with the receipt of certified delivery that she had requested in the mailing of the November 13, 2008 letter but did not immediately follow up with GSA. Her response to the fact that she had not received confirmation of delivery was informed by her previous experiences communicating with GSA. The lease at issue was not the only lease between Woodies and GSA that Ms. Motamedi administered. At this time, Ms. Motamedi was responsible for at least eighteen other GSA leases. 7She testified, based on her extensive experience with GSA, that it was abnormal to receive the receipt confirming delivery when she sent a certified letter to GSA with a return receipt request. At trial, Ms. Motamedi was asked, “What percentage of the time do you get a return receipt from your mailings to GSA?” and responded, “One in ten.” Tr. 36:19-21. This was the case despite the fact that Ms. Motamedi testified that she always sent bills or official communication to GSA via certified mail with return receipt requested. The lack of a return receipt did not give Ms. Motamedi much cause for concern, 8

6This outgoing mail tray is the only one designated for mail being sent through the Postal Service, and it serves the entire Douglas Development Corporation office.

7Woodies was only one of Ms. Motamedi’s clients that leased to GSA.

8 When plaintiff’s counsel asked if Ms. Motamedi had “experienced situations where you’ve sent [c]ertified [m]ail but it wasn’t delivered for whatever reason,” she replied, “[i]f it’s not delivered, then it will the whole envelope

4however, because she would later receive an e-mail from a GSA employee

stating that the letter had been received and that the matter was being acted upon. Finally, Ms. Motamedi told the court about a 2008 change in procedure for submitting proof of tax payment to GSA. Beginning in March of that year, GSA began to transition from receiving requests for real estate tax reimbursements through the mail to receiving the requests through a centralized fax system. Throughout 2008, GSA received submissions by both methods: mail and fax. GSA notified lessors by letter in December 2008 that they should begin making submissions using the new fax system. While Ms. Motamedi testified that she did not receive a notice from GSA regarding the new submission procedure specific to the lease at issue, Ms. Motamedi was aware of the change in policy because of her administration of other GSA leases. On December 29, 2008, Ms. Motamedi faxed to GSA the same proof of tax payment documents that she had originally included in her November 13, 2008 submission. She testified that, “[f]or all the other buildings that I had already mailed my letters and billings, I started faxing all of them once more one more time, and for this specific one . . . . I put an invoice according to what I had gotten in mail, and with the second set . . . faxed it, I faxed this one, too.” Tr. 57:25-58:7. On the fax, she wrote “[t]hese were previously sent to the contracting officer.” JX 6 at WHL 642. GSA received the faxed submission on December 29, 2008, but Mr. Joel Berelson, the GSA Contracting Officer (“CO”) assigned to the lease at issue, rejected it as untimely on June 23, 2009. JX 7 at WHL 640. Mr. Berelson was not the only GSA employee who had responsibility for administering the lease on behalf of GSA. GSA used a team approach to lease administration whereby several other lower level GSA employees shared responsibility for the routine administration of the lease at issue. These employees included: Budget Analyst Terez Haines, Realty Specialist Donald Scoggins, Budget Analyst Victoria Rinehardt, and prior to Mr. Berelson, Contracting Officer Michelle Parrish. Due to the team approach, Mr. Berelson was unable to answer many of the questions posed by counsel or the court

comes back to us.” Tr. 55:14-18. According to Ms. Motamedi, the correspondence at issue was never returned to her or to Douglas Development Corporation.

5from p ersonal knowledge at trial. We therefore f ind Mr. Berelson to be candid but uninform ed or lacking personal knowledge concerning whether GSA did, in fact, receive the Novem ber 13, 2008 letter.

Mr. B erelson testified that Budget Analyst Vict o r i a Rinehardt was responsible fo r the daily adm inistration of the l ease at i ssue, which included “receiving d ocum entation submitted by the lessor,” whether by f ax or m ail, “and then r eviewing that docum entation and preparing the lease am en dm ent for reim bursem ent.” Tr. 8 6:12- 1 5

. Although Mr. Berelson adm itted that he did not k now exactly how m ail comm unications w ere distributed within GSA, and, even though he conceded that the lessor was under no o bligation to direct its submission to the specific Budget Analyst assigned to the lease, he asserted that any comm

unication regarding the lease at issue should have been delivered t o Ms. Rinehardt. Mr. Berelson w as adam ant that, if GSA actually received the Novem

ber 13, 2008 submission, then Ms. Rinehardt would have been the e ventual recipient and custodian o f those docum ents even though he
was aware th at o thers within GSA had received m isdirected m ail and had personal experience with m isdirected delivery of docum ents within GSA. Specifically, Mr. Berelson recalled that prior to the new fax system , he received at least o ne m ailed-in docum ent that should n ot have been delivered to him

. When this h appen e d , M r

. B erelson determ ined who was the proper GSA recipient and hand delivered the d ocum ent to the correct individual. Mr. Berelson further adm itted that it was “not uncomm on for m ail to be addressed to a contracting officer [ who was] no longer responsible for a l ease or a realty specialist” who was not the p r o p er recipient, particularly as reassignm ents
were comm on within GSA. Tr. 131:24-132:1. According to Mr. B erelson, the centralized fax system was intended to addre s s this issue of m i sdirected
c o mm unications because one adm inistrative em ployee was tasked with
r e c eiving the faxes and identifying the proper recipient based o n an up d at e d database of adm inistrators assigned to specific leases. Additionally, the parties stipulated to the following:

Prior to establ i shing the fax system , GSA received com plaints from lessors that they had subm itted m aterial that GSA had no record of having received and n o way of d efinitively verifying whether the m aterial was sent or received. According to Carla Walker, a GSA budget an al y st i ntern who helped establish the fax system and then m onitored and tracked submissions through

6the fax system , G SA had “ n o w ay to track whether or not [ the lessors] actually really had sent them .” Stipulation ¶ 10. Mr. Berelson was unsure about h ow m ail was tracked and delivered within GSA prior to establishm ent of the centralized fax system

.
Mr. Berelson testified that, before he denied Woodies’ s u bm ission for untim eliness, Ms. Rinehardt advised him “that there was a search through the lease file and the p aym ent file and th at there was not evidence of a tim ely submission by the lessor.” Tr. 92:9-11. The lease file, which w as the o fficial GSA file containing the lease, am e ndm ents, and supporting docum entation,
was one of two places where the Novem ber 13, 2008 subm ission could have been stored. The other w as the paym ent file, which was a working f i le k ept by Ms. R i n e hardt. H owever, Mr. Berelson did n ot know which file Ms. Rinehardt had checked in order to reach the conclusion that Woodies had not tim ely submitted the p roof of tax paym ent. Tr. 93:9-12. Mr. B erelson also did not know wh ether Ms. Rinehardt had checked if the m i ssing docum ent had been delivered t o o ne o f the other m em b ers of the team

. Instead, he testified that he assum ed she had conducted a thorough check for a tim ely submission, but he had not pressed M s

. R i n ehardt for d etails or searched h im self. 9 Mr. Berelson also stated, “I have no way of k nowing ” i f the Novem

ber 13, 2008 letter was m isdirected within GSA. Tr. 98:4.

W i th th ese f

acts before u s, we endeavor to resolve whether Woodies has proved that it tim ely submitted the Novem b er 1 3, 2008 proof of tax paym ent. If i t did, GSA is obligated to reim b ur se p l a intiff for the tax differential for the rem aining two m onths of lease year 2007-2008.

9 Mr. Berelson a lso did not know wh ether the files f or the other GSA leases within the Woodies building had been searched for the m issing submission. Mr. Berelson w as asked “ why would it not have been logical to l ook at the f ile folder for [ lease num

bers] 1641 or 1751 or 1838 because you have a comm on b i l l ing for four different leases? Isn’t it p ossible that [ ] one bill could h av e been stuck in one of those other files?” Tr. 1 08:20-24. Mr. Berelson replied, “It could have been.” Tr. 108:25. When pressed further as to whether there “were

. . . standing orders that when you get a single billing for m ultiple leases, the first thing you do is m ake copies?” Tr. 109:2-4. To which he answered, “I’m not aware of how that works.” Tr. 109:5.

7DISCUSSION

We find that Ms. Motam edi did, in fact, place the postage-stam p ed and properly addressed envelope containing the l etter and proof of tax paym ent in the outbox of Woodies’ internal m a iling system on N ovem ber 13, 2008, and that, based on the routine practice of her office, the m ail that was placed in the outbox tray was placed in a Postal S ervice box. 1 0 Thus, Ms. Motam edi did, in fact, m ail the certified return receipt requested letter on Novem ber 13, 2008.

Norm ally, the fact that Woodies m ailed the l etter u s i ng the Postal Service would entitle i t t o a presum p tion of delivery regardless of G SA’s assertion of n on-receipt. Rosenthal v. W alker , 111 U.S. 185, 193 (1884) (“If
a letter properly directed is proved to have b een either put into the post-office
or delivered to the postm an, it is p resum ed, from the known course of business in the post-office departm e nt, that i t reached i ts d estination at the regular tim e, and was received by the person to wh om it w a s addressed.”). H owever, the
comm on law m ailbox ru l e p r e s um p tion is rebuttable w ith e vidence that the letter was n ever r eceived. Rios v. Nicholson , 4 9 0 F

. 3 d 928, 931 (Fed. Cir. 2007). “If there is opposing evidence that the letter was n ot received, the trier of fact m ust weigh the evidence ‘with all the other circum stances of the case’ to determ ine whether the letter was a ctually received.” T antum v

. MSPB , 4 82 F. App’x 554, 556 (Fed. Cir. 2012) (citing Rios , 490 F.3d at 931).

D e fendant argues that plaintiff is not entitled to the m ailbox rule presum ption of delivery b ecause it never received the return receipt c ard that it r equested, which would have confirm ed delivery. In other words, defendant proffers the n on-existence o f the requested receipt of delivery to e s tablish the fact that the Novem

ber 13, 2008 letter was not de l ivered t o GSA. The
r ationale is that, if a letter is sent b y certified m ail and the sender do e s n o t receive the confirm ation of delivery from the Postal Service, the sender is on notice th at there m ay have been a problem with delivery. M oya v. U nited States , 35 F.3d 501, 504 (10th Cir. 1994). Several Courts of Appeal also have held that the lack of a return receipt when a letter was sent certified with return receipt requested rebuts the presum ption o f d e l ivery. Busquets-Ivars v.

1 0 Circum stantial evidence of m ailing, including the custom ary m ailing practices used in the sender’s norm al cour s e o f business, is sufficient for purposes of the m ailbox r ule. Custer v. Murphy Oil USA, Inc , 5 03 F.3d 415, 420 (5th C ir. 2 007); Rios , 490 F.3d at 933; Lopez v. Gonzales , 468 F.3d 81, 85 (2d Cir. 2006); Davis v. U.S. Bancorp , 383 F.3d 761, 766 (8th Cir. 2004).

8Ashcroft , 333 F.3d 1008, 1009 (9th Cir. 2 003); Moya , 35 F.3d at 5 04; Mulder

v. Comm’r , 855 F.2d 208, 212 (5th Cir. 1988); McPartlin v. C omm’r , 653 F .2d 1185, 1191 (7th Cir. 1981).

In addi t i o n t o the non-existence o f the receipt card, defendant argues that, because it i s entitled to a presum p tion of regularity in its record-keeping, its i nability to locate the Novem ber 13, 2008 letter in its records overcom es the presum ption of receipt. “The ‘presum ption of regularity’ supports official acts of public officers. I n the abs e n c e o f c lear evidence to the contrary, the doctrine presum e s that public officers have p roperly discharged their o fficial duties.” Butler v. Principi , 244 F

. 3 d 1337, 1340 (Fed. C ir. 2001); see Chrysler Corp. v. United States , 604 F.3d 1387, 1380 (Fed. Cir. 2010). Specifically, defendant asserts that, because i ts records are presum e d to be regular and c orrect and because its records contain no evi de nc e that GSA received the Novem

ber 13, 2008 submission, th e n G S A did not receive the proof of tax paym ent until Woodies submi tted it via fax on Decem ber 29, 2008, which was untim ely.

Neither the use of c ertified m ail nor a presum ption of regularity helps the agency in this case. There is clear evidence to r ebut def e n d ant’s presum ption of regularity. First , there were the problem s at GSA that necessitated the im

plem e ntation of the centralized fax system

. Second, there
was the team approach and the history of at least two contracting o f ficers having been assigned to this lease, which increased th e num b er of potential recipients within GSA. There w e r e mu l tiple files for each lease and several other lease files related to the Woodies building that could have shared the
sam e p r o o f of tax p aym ent. Finally, Mr. Berelson was unable to provide
assurances that h e had personally searched any o f these potential resting p laces for the m issing submission before concluding that the fax submi ssion was untim ely. The internal m ail delivery s ystem with i n G S A was unreliable, at best, during the period o f tim e when the Novem b er 13, 2008 letter went
m issing. Mr. Berelson could not r e c all doing anything to investigate the location of the initial submission, nor did he f ollow u p with subo r dinate
em p l o ye es about whether the Novem ber 13, 2008 letter m ay h ave been
m i s placed or m isfiled. Under these circum s tances, the governm ent is not entitled to the presum

ption of regularity in its business practices. 1 1

1 1 Even if the governm e nt had been entitled to the presum ption of regularity, th at presum

p tion “alone, cannot overcom e another presum ption.” Rios , 4 90 F.3d at 933. In other words, the presum ption of regularity is only relevant if

9In addition, any evidentiary weight which m ight norm ally attach to the

non-receipt of the certified m ail form is inapplicable here in view of the clear evidence that the a gency routinely ignored the b asic rules of that system : it often did not sign for the m ail or return the receipt. M s

. M o tam e di testified that 9 o ut o f 10 tim es she did not receive a green return receipt when she sent certified m a i l to G SA, despite later confirm ation that the letter had actually been delivered to GSA.

There is thus nothing entitled to evidentiary w eight to rebut the presum ption that the first, certified letter was a c tually received

. A s Ju dge Skelton of the Court of Claim s observed:

A presum ption cannot be overturned or rebutted by speculation
or suspicion. It can only b e destroyed or ove r c o m e by
c onvincing and uncontradicted evidence to the contrary wh i c h clearly and distinctly establishes a fact s o that reasonable m inds
can draw but one i nference. In addition t o the foregoing, to
overcom e the strong presum ption of the arrival o f a letter i n due
course of the m ails, the countervailing evidence m ust show the contr ary to be true by direct and positive proof of affirm ative facts.

Charlson Realty Co. v. U nited States , 38 4 F.2d 434, 444-45 (Ct. Cl. 1967) (internal citation om itted).

We are satisfied that the No ve m b er 1 3, 2008 letter w as properly stam p ed and a ddressed and placed in the United States m a il, and we can thus presum e that it w as delivered to GSA within a short period of tim e, m aking it tim ely t o tr i g ger Woodies’ rights under the lease to claim r eim bursem ent. There is no credible evidence to the contrary.

CONCLUSION The parties agree that the am ount i n controversy for this narrow issue is $37,837.34. We find that Woodies tim ely s ubm itted the Novem ber 13, 2008 le tt e r with attached proof of p aym ent and is therefore e ntitled to recover $37,837.34, GSA’s proportional tax burden for the 2 m onth p eriod o riginally denied as untim ely. We previously held that plaintiff is also owed GSA’s tax

we find that the presum

ption of delivery does not apply. S ee id . at 933-34.

10share for the o ther ten m onths of th e 2007-2008 lease year. Altogether,

Woodies is hereby awarded a total principal am ount of $227,024.04, G SA ’ s portion of the 2007-2008 r e a l e s t at e t axes for the lease at issue. P laintiff is also e nt i t l ed to interest o n this am ount under the Contract D isputes Act, 41 U.S.C. § 7109(a)(1) ( 2012), from the d ate of its claim , June 2, 2 0 1 1

. T he Clerk’s Office is instructed to enter judgm e nt accordingly.

s/ Eric G. Bruggink Eric G. Bruggink Judge

11