# In the United States Court of Federal Claims

No. 14

- 494C (Filed: August 24, 2015)

MUHAMMAD TARIQ BAHA,

Plaintiff,

v. THE UNITED STATES,

Defendant. )

) ) ) ) ) ) ) ) ) ) ) Motion to Dismiss; Lack of Jurisdiction; RCFC 12(b)(1); Failure to State a C laim; RCFC 12(b)(6); Pleading Contractual Provisions; RCFC 9(k); Contract Disputes Act ; Notice to I nterested P arties ; R CFC 14(b)(3) ; RCFC 12(b)(7)

Mogeeb Wei s s , Weiss Law PC, Alameda, CA, for plaintiff.
James Sweet , Civil Division, U.S. Department of Jus tice, Washington, DC, with whom were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr ., Director, Franklin E. White, Jr. , Assistant Director , for defendant.

OPINION DENYING THE GOVERNME NT’S RENEWED MOTION TO DISMISS FIRESTONE , Judge

. P ending before the court is the motion of defendant United States (“the
governmen t”) to dismiss the amended complaint of plaintiff, Muhammad Tariq Baha (“Mr. Baha”) , p ursuant to Rules 12(b)(1), 12(b)(6), and 12(b)(7) of the Rules of Uni ted States Court of Federal Claims ( “ RCFC ” ). Gov’t’s 2d Mot. to Dismiss, ECF No. 17 (“Gov’t ’ s Mot.”)

. The complaint alleges that , from August 2002 until March 2014, the United States Army occupied a property known as Jill Fab house in Kabul, Afghanistan that plaintiff2

alleges belo ngs to him. Mr. Baha alleges that the government did not pay him any rent between September 2003 and September 2009, or between September 2012 and March 2014. The plaintiff argues that pursuant to contracted agreement, the government owes him $54,000 per year for rent owed for September 2003 to September 2009 and $120,000
per yea r for rent owed from September 2012 t o March 2014. The government argues that the claims for unpaid rent for the period between September 2003 and September 2010 should be dismi ssed pursuant to RCFC 12 ( b ) (6) and RCFC 9(k) because the plaintiff has failed to provide a copy of the 2002 lease agreement. Instead, the plaintiff submitted an amendment to that agreement signed on August 17, 2002, in which the government agreed to pay $54 ,000 per year for the term of the 2002 lease. The government also argues that , pursuant to RCFC 12(b)(1), the court lacks jurisdiction over plaintiff’s claim for rent allegedly owed for January, February, and March of 2014 because the claim plaintiff subm itted under the Contracts Disputes Act (“CDA”) , 41 U.S.C. § 710 3 , only requested rent accrued through the end of 2013. 1 Finally, th e government argues that pursuant to RCFC 12(b)(7), the case should not proceed because , Mr. Baha , has failed to join the other owners of the J ill Fab house . The government argues that the J ill Fab is owned by several individuals, who , in addition to Mr. Baha, inherited i t from Mr. Baha’s father

. According to the government, these

1 The government initially claimed that plaintiff was barred from seeking rent allegedl y owed after 2009 based upon a claim for payment that the plaintiff submitted to the contracting officer in January of 2010. However, in his opposition to defendant’s motion to dismiss, plaintiff attached a second claim that Mr. Baha had submitted to the contracting officer on January 19, 2014. App’x to Pl.’s Opp. to Gov’t’s Mot. (“Pl.’s App’x”) 1

- 2 , ECF No. 18

- 1.3

individuals are i ndispensable parties and that the case should be dismissed because they were not joined. In the alternative, the government requests, pursuant to RCFC 14(b), that the court provide notice to these heirs, as interested parties, in order to give them an
opp ortunity to intervene. The plaintiff argues that he alone owns the subject property under Afghan law and he alone had the authority to lease the property and the refore other heirs are not indispensable. Pl.’s Opp. to Gov’t’s Mot. (“Pl.’s Opp.”), ECF No. 1 8. For the reasons set forth below, the government’s motion to dismiss is DENIED

. However, because the court finds that individuals other than Mr. Baha p otentially have an interest in the property and the leases at issue, the court GRANTS the government’s motion to pr ovide notice to the other heirs of the property.
I. BACKGROUND A. Facts 2 Mr. Baha alleges that he possesses a deed for a residential house in Kabul, Afghanistan known as the Jill Fab house. Am. Compl. ¶ 7

. Mr. Baha alleges that, on August 10, 200 2, he entered into Lea se No. SWD

- OEF

- 0027 (“27 Lease”), an agreement
to rent the Jill Fab house to the government. Am. Compl. ¶ 5. Mr. Baha states that he “does not have a copy of this written Lease Agreement ” and alleges that this is “ because Defendant refused to provide Plaintiff with a copy.” Id

. Shortly after the 27 Lease was

2 The facts as stated are taken from the allegations in the plaintiff’s complaint attached documents, as well as the documents attac hed to the government’s motion to dismiss and the plaintiff’s opposition. At this time, the parties have not challenged the authenticity of any of these documents.4

signed , a dispute arose as to whether Mr. Baha’s father, Ghui am Bahawoudin, 3 or another
per son, Haji Jamil, owned the house. Am. Compl. Ex. 1. As a consequence , on August 17, 2002, the g overnment entered into a supplement to the 27 Lease ( “ 27 Lease Supplement ” )

. The agreement was between the government and “Ghuiam Baoddin [son of] Niaz Mohammad , acting by and through his son Muhammad Tariq Baha.” Am. Compl. Ex. 1 at 1. Under the 27 Lease Supplement, the g overnment took possession of
the house , but the parties agreed that the government would not make payment until an Afghan court determined leg al ownership and title to the house. Id. Paragraph 3 of the 27 Lease Supplement, entitled “RENTAL” stated that “The Lessee will pay the Lessor rent at the rate of $54,000 (U.S. Dollars) for the term. ” Id. At the time 27 Lease Supplement was signed, Mr . Bahawoudin was de cease d. App’x to Gov’t’s Mot. (“ Gov ’ t App ’x ”) 15; Pl.’s Opp. 5.
M r. Baha alleges that he successfully prevailed in the Afghanistan Supreme Court against all challenges to the title of the house in 2009. Am. Compl. ¶ 7; Gov ’ t App ’x 15

- 19. The Afghanistan Supreme Court decision found that Mr. Bahawouddin was the rightful owner of the property and that , since he was deceased, the property belonged to
his heirs. Gov’t App’x 15, 17

- 18

. Th e Afghanistan Supreme Court decision a lso indicates that, in addition to Mr. Baha, the other heirs are Mr. Bahawouddin’s widow,
K o bra, and his other children: Mohammad Hamed, Mohammad Khaled, Qudsia, Fahima, Afifa, Fariha, and Tuba (collectively, “ other potential heirs ” ). Gov’t App’x 15.

3 Mr. Baha’s father is referred to variously as Mr. Baoddin or Mr. Bahawouddin. For consis tency , this o pinion refers to him as Mr. Bahawouddin.5

The parties entered into a second lease agreement for the same property, Lease
No. DACA

- TAN

- 5

- 11

- 0032 ( “ 32 Lease ” ) , on August 8, 2011. Gov’t App ’x 5

- 14

. The
32 Lease , signed by Mr. Baha , state d that the agreement wa s between the government
and “the heirs of Bahawouddin, Son of Neyaz Mohammad Represented by Mohammad Tariq [Baha]

. ” Id. at 5. The 32 Lease gave the government the right to the property from September 25, 2011 to September 24, 2012 , with a right to renew for up to four years
under the same terms

. Id. T he government agreed to pay an annual rent of $120,000. Id.
Mr. Baha alleges that the government paid h im rent from September 2009 through September 2012 at a rate of $120,000 per year for a t otal of $360,000 . Am. Compl. ¶ 6.
Ho wever, Mr. Baha alleges that the government stopped paying rent in September of 2012, but remained on the property until March of 2014

. Am. Compl. ¶ 8. Mr. Baha also alleges that the g overnment never paid the rent due be tween September 2003 and September 2010 , while Mr. Baha was litigating the title issue

. Am. Compl. ¶¶ 1, 9.
Mr. Baha submitted t wo CDA claims , the first in January 2010 seeking rent and other damages accrued between 2002 and 2009 in the amount of $1,615,000 , Gov’t App’x 1

- 3, and t he second in January of 2014 for rent and other damages accrued through December of 2013 in the amount of $2,109,000, Pl.’s App’x 1

- 2

. B. The C ourt’s O rder R egarding P laintiff’s A mended C omplaint On June 9, 2014, Mr. Baha filed his initial c omplain t in this c ourt. Following a hearing on the government’s first motion to dismiss , th e co urt issued an order permitting Mr. Baha to amend his complaint and directing Mr. Baha to a ddress three issues raised i n the government ’ s initial motion to dismiss

. Jan. 16, 2015 Order at 1 (“Order”) , ECF No.6

13. First, Mr. Baha was directed to “only make claims based on documents that can be located and attached to the amended complaint.” Id

. Second, Mr. Baha was directed to
show “ t hat he has satisfied the requ irements for a CDA claim ” by submitting a claim regarding rent allegedly due betwee n September 2012 and March 2014, “ or consider withdrawing the claim until he can meet the CDA’s jurisdictional requirements.” Id

. Third, Mr. Baha was dire cted to allege whether or not he was the sole heir to the J ill Fab
house

. Id

. at 2.
Mr. Baha filed an amended complaint on March 10, 2015. The government renewed its motion to dismiss on May 15, 2015. The court finds that oral argument on the governm ent’s renewed motion is not necessary.
II. STANDARD OF REVIEW Under the Tucker Act , an action may be maintained in this c ourt only if it is “founded either upon the Constitution, or any Act of Congress or any regulation of an executive depar tment, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). A plaintiff seeking to litigate in the Court of Federal Claims “ bears the
burden of es tablishing subject

- matter jurisdiction by a preponderance of the evidence

. ” Hopi Tribe v. United States , 782 F.3d 662, 666 (Fed. Cir. 2015) (quoting M. Maropakis Carpentry, Inc. v. United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010 ) ). “Determination
of jurisdiction starts with the complaint, which must be well

- pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any defense that may be interposed.” Holley v. United States , 124 F.3d 1462, 1465 (Fed. Cir. 1997) (ci tations7

omitted). If a motion to dismiss for lack of subject matter jurisdiction challenges the jurisdictional facts alleged in the complaint, the court may consider relevant evidence outside the complaint in order to determine whether it has jurisdiction

. Banks v. United
States , 741 F.3d 1268, 1277 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force
Exch. Serv. , 846 F.2d 746, 74 7 (Fed. Cir. 1988)).
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” RCFC 8(a)(2)

. A complaint that offers “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqba l , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544 , 555 (2007)). Nor does i t suffice t o tender “naked assertion[s] devoid of further factual enhancement.” Id

. ( quoting Twombly , 550 U.S. at 557 ). Thus, the factual allegations (as opposed to the legal conclusions) must be sufficient to “n udge” a claim “across the line from conceivable to plausible.” Id

. at 683 ( quoting Twombly , 550 U.S.
at 5 70).
III. DISCUSSION A. Plaintiff’s Complaint Satisfies RCFC 9(k) and the Court’s Order The government argues that this court does no t possess jurisdiction to consider Mr. Baha’s claim for rent between September 2003 and September 2010 because he failed to attach a copy of the 27 Lease, and has failed to identify the substantive provisions of th e lease upon which he relies . Therefore, the government argues, plaintiff does not meet the requirement of RCFC 9( k). T his rule sets the pleading requirements for bringing a claim founded on a contract or treaty in this court, providing that:8

In pleading a claim founded on a contract or treaty , a party must identify the substantive provisions of the contract or treaty on which the party relies. In lieu of a description, the party may annex to the complaint a copy of the contract or treaty , indicating the relevant provisions. RCFC 9(k). 4 The go vernment also argues that plaintiff has not satisfied this court’s prior Order stating that plaintiff “shall only make claims based on documents that can be
located and at tached to the amended complaint. ” Gov ’ t’s Mot. 6 (quoting Order at 1).
The court d isagrees with the government and finds that Mr. Baha has satisfied both RCFC 9(k) and this court’s prior order. In his amended complaint, Mr. Baha admits that he “does not have a copy of [the original 27] Lease Agreement[.]” Am. Compl. ¶ 5.
He did , howe ver , attach a copy of the 27 Lease Supplement, which he argues proves both
that a contract existed and that under its terms he was en titled to a $54,000 annual rent for
“the term” of the Lease. The government argues th at his claim based upon the 27 Lease
must be dismissed because the 27 Lease Supplement does not establish that the government would owe $54,000 annually for rent , and instead “only provides a p ayment of $54,000 for ‘the term , ’ not per year, as Mr. Baha asserts. ” Gov’t’s Mot. 6.
The court agrees with the plaintiff and finds that 27 Lease Supplement attached to plaint iff’s amended complaint is sufficient to satisfy the terms of the court’s prior order as well as RCFC 9(k) . Plaintiff has alleged that the 27 Lease required the government to pay him $54,000 per year in rent , an allegation supported by the lease supplemen t, which is sufficient to satisfy RCFC 9(k). Given that the government does not refute plaintiff’s

4 Satisfaction of RCFC 9(k) is a jurisdictional requirement. See Gonzalez

– McCaulley Inv. Grp., Inc. v. United States , 93 Fed. Cl. 710, 715 (2010).9

assertion that it has a copy of the 27 Lease, the court finds that attaching t he 27 Lease
S u pplement to plaintiff’s complaint satisfies the court’s order.
B. Plaintiff H as Satisfie d the CDA’s Claim Requirement Th e government argues that , under the CDA, the court lacks jurisdiction over
p laintiff’s claim for unpaid rent for January, February, and March of 2014 because plaintiff only demanded rent due through December 2013 in the clai m that he submitted on January 19, 2014

. Under the CDA , “[e]ach claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). A claim is “a written deman d or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.” 48 C.F.R. § 52.2 33

- 1(c). Because the claim requirement is jurisdictio nal, the failure to submit a valid claim that conforms with the CDA’s requirements must result in the dismissal of the complaint

. Northrop Grumman Computing Sy s., Inc. v. United States , 709 F.3d 1107, 1112 (Fed. Cir. 2013) (“ If a purported claim is found to be insufficient for any reason, the insufficiency is fatal to jurisdiction under the CDA. ” (citing Sharman Co. v. United States , 2 F.3d 1564, 1568 (Fed. Cir. 1993) ).
The court finds that plaintiff has established jurisdiction under the CDA for the entire amount he seeks in his amended complaint, including the first three months of10

2014. 5 In order to establish jurisdiction in this court, the prerequisite cla im must include “an adequate statement of the amount sought and an adequate statement of the basis of the request.” K

- Con Bldg. Sys., Inc. v. United States , 778 F.3d 1000, 1005 (Fed. Cir. 2015) (citing Joseph Morton Co. v. United States , 757 F.2d 1273, 12 81 (Fed. Cir. 1985) ). However, the requirement that a claim include a statement of the amount sought does not preclude the court from taking jurisdiction even if there are “ adjustments in amounts ‘based upon matters developed in litigation.’” Id. (quotin g Tecom, Inc. v. United States , 732 F.2d 935, 937

- 38 (Fed

. Cir. 1984)). In Modeer v. United States , the court found that it had jurisdiction over a claim for which damages had continued to accrue after the claim was submitted to the contracting officer

. 68 Fed. Cl. 131, 137 (2005) aff ’ d, 183 F. App ’ x 975 (Fed. Cir. 2006) . The court reasoned that “ if the dollar value of a claim increases based on new information available only after the claim was submitted to the contracting officer, ” the plaintiff was no t required to resubmit the claim so long as the amount that the plaintiff claims in litigation “ arises from the same operative facts as the original claim and claims the same categories of relief. ” Id. (citing Cerberonics, Inc. v. United States , 13 Cl. Ct. 415, 418 (1987) ). Plaintiff’s 2013 claim to the contracting officer stated that he was seeking $10,000 per month in unpaid rent pursuant with his contract with the government. Pl.’s App’x 2. In the present litigation, plaintiff seeks the same monthly r ent for three additional months under the same theory

. See Am. Compl. ¶ 18. Therefore, the court

5 Because this challenge is jurisdictional, the court i s permitted to look at documents outside of the pleadings. Banks , 741 F.3d at 1277

.11

“will have to review the same or related evidence” that was before the contracting officer in this litigation. Kinetic Builder ’ s Inc. v. Peters , 226 F.3d 13 07, 1312 (Fed. Cir. 2000) ( citing Placeway Constr. Corp. v. United States , 920 F.2d 903, 907 (Fed. Cir. 1990) ). The claim before the contracting officer and the complaint before this court therefore involve the “same operative facts,” id. , and the dollar value of the claim only increased based on events which occurred “ only after the claim was submitted to the contracting officer, ” Modeer , 68 Fed. Cl. at 137

. T herefore, the claim in plaintiff’s complaint is the same as the one he presented to the contracting officer

. Conseqently, the government’s motion to dismiss plaintiff’s claim for rent allegedly owed for January, February, and
March of 2014 is denied.
C. Mr. Baha is a Real Party in Interest , but Other Interested Parties Must be Notified The government ar gues Mr. Baha lacks capacity to prosecute this case because
Mr. Bahawouddin ’s heirs are the real party in interest, not Mr. Baha. Under RCFC 17(a) (1) , “ [a] n action must be prosecuted in the name of the real party in interest.” RCFC 17(a)

. T he government argues that the other heirs, who are identified in the Afghan istan Supreme Court decision as Mr. Baha’s siblings and his father’s wife, must be joined to this litigation as indispensable parties under RC FC 19(a). In the alternative, the government asks the court to provide notice to t he other heirs under RCFC 14(b), and has provided the court with their contact information. According to the government, Mr. Baha’s siblings have contacted the governme nt and expressed an interest in collecting the rent on the property.12

The court finds that , as one of Mr. Bahawouddin ’s heirs, Mr. Baha is one of the real parties in interest to this case

. 6 The 27 Lease Supplement is “between Ghuiam Bawoddin [son of] Nia z Mohammad, acting by and through his son Muhammad Tariq Baha,” and the Government. Am. Compl. Ex. 1 at 1

. The 32 Lease is between “the heirs
of Bahawouddin , Son of Neyaz Mohammad Represented by Mohammad Tariq [Baha]”

an d th e Government. Gov’t App’x. 5. T he Afghan istan Supreme Court decision

— upon which Mr. Baha relies to trigger the rent o bligation

— indicates that the owners of the subject prope rty are Mr. Bahawoud din’s heirs including Mr. Baha , his mother, his two brothers, and his five sisters

. Gov ’t App ’x 15, 1 7

- 18. I n addition to having an interest in the property itself, Mr. Bahaouddin ’ s other heirs may have a n interest in the proceeds of
the leases at issue in this case. T he 32 Lease in particular states that the Lessor includes
the “ heirs of Bahaouddin ,” Gov’t App’x 5, using the plural t o indicate that Mr. Baha was only one of several heirs intended to benefit from the proceeds of the lease

. Because Mr. Bahaouddin ’s other children and his widow may have an interest in the outcome of this litigation, the court orders that they must be given notice und er RCFC 14(b ). S ee RCFC 14(b)(1) ( “T he court, on motion or on its own, may notify any person . . . who is alleged to have an interest in the subject matter of the suit.” ) . In an attempt to

6 Mr. Baha argues he may bring this case without joining the other heirs under RCFC 17(a)(1)(F), which states that “ a party with whom or in whose name a contract has been made for another ’ s benefit ” is permitted to “sue in [ his] own name [ ] without joining the person for whose benefit the action is brought

. ” RCFC 17(a)(1)(F ) . However, there is nothing in Mr. Baha ’ s amended complaint, which makes no mention of anyone with an interest in the property other than himself, indicating that he he is bringing this suit on the other heirs’ behalf. The court therefore finds that RCFC 17(a)(1)(F) is inapplicable.13

show that he may prosecute this case on his own , Mr. Baha has provided a declaration
from Rona Kabiri , an attorney licensed to practice law in Afghanistan

. Pl.’s App ’ x 25

- 28. Ms. Kabiri states that under Afghan law, plaintiff “has complete possessory right over the property” and that plaintiff’s siblings “cannot maintain any action against Baha in an Afghan court for right to the property because they have never identified themselves as the issue of the deceased.” Id. at 11 (citing Afghan Civil Code Art. 11, 499). The

court does not have sufficient information at this time to determine whether Mr. Baha is correct reg arding the laws of Afghanistan. However, the court finds that under RCFC 14(b), the other heirs have at least enough of an alleged interest in the subject of the litigation that they must be g iven notice an d an opportunity to assert any potential claims

. Therefore, for the reasons stated above, the cour t finds that the below

- identified
heirs have an interest in the property that is subject to the litigation and may be entitled to payment under the 32 Lease and/or the 27 Lease

. 7 As such, notice shall be provide d t o the i ndividuals identified below : Qudsia Badghisy In care of Yegana Badghisy 502 Patterson View SW Calgary, Alberta T3H3J9 CANADA Tel: (403) 479

- 9050 Fahima Ahrary Ascherring 11 21035 Hamburg, GERMANY Tel: 01149407355346 Famihab@hotmail.de
Fariha S amadzada 5838 Montevino Dr. San Jose, CA 95123 Tel: (408) 229

- 9785 Mohammad Hamid Baha 47 Kincora View NW Calgary, Alberta T3R1M4 CANADA

7 At this time, the court defers ruling on the government’s contention that t he other heirs are necessary parties under RCFC 19(b).14

massood_sam@sbcglobal.net Tel: (403) 247

- 5734
Afifa Baha 28863 Bay Heights Rd. Hayward, CA 94542 Tel: (510) 397

- 2288 Cell: (510) 461

- 7005 zubeen_2@yahoo.com Tooba Baha 4525 Riding Club Ct. Hayward, CA 94542 Tel: (510) 583

- 0157 Cell phone: 510

- 676

- 2746 Tbaha11@hotmail.com
Mohammad Khalid Baha 661 Logan Lane Danville, CA 94526 avgan@sbcglobal.net Kob ra Baha Kakar 4525 Riding Club Ct. Hayward, CA 94542

IV. CONCLUSION For the reasons stated above , the government’s motion to dismiss is D ENIED

. The government’s motion to require notice to the other potential heirs is GRANTED

. The Clerk is directed to deliver notice to the government, as the moving party, for service
on the above

- named persons. RCFC 14(b)(4)(A). Pursuant to RCFC 14(b)(4)(B), the government shall serve the notice, together with the pleadings filed in this case , by registered or certified mai l. The above

- identified persons shall have 42 days after notice is issued to file an appropriate pleading. RCFC 14(c)(2). The case will remain stayed for a period of 60 days to allow for notices to be issued and for the persons identified to file pleadi ngs. Responses to those pleadings shall be in accordance with the court’s rules.
IT IS SO ORDERED.
s/Nancy B. Firestone NANCY B. FIRESTONE Judge