ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE STINSON ON 

APPELLANT’S MOTION FOR SUMMARY JUDGMENT 

Appellant GLJ, Inc. (GLJ), appeals a contracting officer’s denial of its May 8, 

2021, claim, in the amount of $18,810, alleging damages to GLJ’s property arising out of 

the subject land lease with the government (R4, tabs 004-005). We have jurisdiction 

pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. GLJ submitted 

a motion for summary judgment,0F

1

 and the government submitted a response in 

opposition. GLJ did not submit a reply brief. For the reasons stated below, the Board 

denies GLJ’s motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

 1. On September 20, 2016, appellant entered into Land Lease No. DACA45-5-16-

00059 with the U.S. Army Engineer District, Omaha (R4, tab 001 at 000001). Pursuant 

to the agreement, GLJ agreed to lease to the government land located in the Cottonwood 

Hills Addition to LaGrange Township, Missouri Valley, Harrison County, Iowa (id.). 

The purpose of the lease was stated as “Monitoring Wells,” which apparently included 

 

1

 Appellant submitted two, one-page documents in support of its motion. The first, dated 

October 11, 2021, and entitled “MEMORANDUM IN SUPPORT OF (c) 

Summary Judgment Motion,” set forth appellant’s Statement of Undisputed 

Material Facts (app. mem.). The second, dated October 28, 2021, and entitled 

“Rule 56. Summary Judgment,” set forth appellant’s position regarding the 

government’s submission of certain pleadings to the Board (app. mot.). 

Appeal of - )

)

GLJ, Inc. ) ASBCA No. 62964

)

Under Lease No. DACA45-5-16-00059 )

APPEARANCE FOR THE APPELLANT: Gary L. James

 Secretary/Treasurer

 

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Melissa M. Head, Esq.

 Engineer Trial Attorney

 U.S. Army Engineer District, Omaha

 
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the “placement and maintenance of environmental monitoring wells” (R4, tabs 001 

at 000001, 005 at 000013). Section 3 of the lease stated that the term commenced May 1, 

2016, and ran through April 30, 2017, but was to remain in force thereafter from year to 

year, until April 30, 2021 (R4, tab 001 at 000001).1F

2

 The yearly rent paid by the 

government to GLJ for the land lease was $3,120 (id.). 

2. Section 8 of the lease, entitled “Alterations/Restoration,” provided the 

government the right “to attach fixtures and erect structures or signs” on the leased 

property, which the government also had the right to remove (id. at 000002). Section 8 

of the lease granted GLJ the right, prior to termination of the lease, to “require restoration 

of the leased premises” (id.). Upon such proper notice, “prior to the expiration or 

termination of [the] lease, or prior to relinquishment of possession, whichever first 

occurs,” the government, “at its sole election,” had the right to: “either (1) restore the 

premises to the same condition as that existing at the time of entering into lease or; (2) 

make appropriate settlement to the Lessor representing either the diminution in the fair 

market value of the property due to the failure to restore, or the actual cost of restoration, 

whichever is the lesser amount” (id.). 

3. Section 8 of the lease also provided that the government:

shall not restore the premises, either physically or by payment 

in lieu thereof, for damages as a result of reasonable and 

ordinary wear and tear, the elements or circumstances over 

which the Government has no control, or for alterations, or 

damage thereto, which the Government installed at its 

expense or the Lessor installed and was reimbursed by the 

Government through payment thereof . . . .

(Id.) (bold in original)

4. Section 9 of the lease, entitled “Damages,” provided: 

The Government shall be liable only for damage resulting 

from negligence or misconduct of Government personnel or 

its agents, contractors, or assigns. The Government shall not 

be liable for any loss, destruction or damages to the premises 

beyond the control and without the fault of negligence of the 

Government, including, but not restricted to, acts of nature, 

fire, lighting [sic], floods, or severe weather. The parties 

 2 The government appeal file (Rule 4 file) contains no documentation indicating why the 

lease term commenced on May 1, 2016, prior to the date the parties signed the 

lease (September 20, 2016).
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agree that any settlement of damages by the Government, if 

any, shall be done at termination of the lease.

(Id.) (bold in original)

5. Section 10 of the lease, entitled “Disputes,” provided that the “lease is subject 

to the Contracts Disputes Act of 1978, as amended (41 U.S.C. § 7101 et. al.) and is 

governed according to federal law” (id.). 

6. By letter dated March 18, 2021, addressed to Heidi Durako, Project Manager,

Army Corps of Engineers, Omaha District, GLJ stated that “[a]ctions by the 

Government’s employees or agents in the exercise of the Right-of-Entry have resulted in 

damage to the real property,” and that “[t]he provisions of the contract dated April 6, 

2017 allow the Owner to make a claim under applicable laws for any damages pursuant 

to Right-of-Entry” (R4, tab 002).2F

3

 GLJ alleged a loss of $18,810, based upon a reduction 

in crop production for the years 2018-2020 (id.).

7. GLJ calculated its loss as follows: 

Prior to the contract the crop production was 175 bales per 

year with a value of $66 per bale. In the first year of the 

contract (2017), that year also had crop production of 176 

bales. However thereafter crop production dropped to a mere 

33 in the following years. . . . This shows an average loss per 

year of 143 bales valued at $9,460. However, we have 

determined that part of this loss was due to sales of some of 

the lots which accounts for 48 bales per year loss. (34.5 acres 

with avg 1.38 bales per acre)[.] Leaving the net loss of 95 

bales each year at $66 each (2018, 2019, 2020) valued at 

$6,270 per year for total loss of $18,810 over the 3 years. 

(Id.)

8. By letter dated April 16, 2021, Amanda M. Simpson, Acting Chief, Real Estate 

Division, Real Estate Contracting Officer, acknowledged receipt of appellant’s March 18, 

 3 The Rule 4 file contains no copy of a “contract dated April 6, 2017” (R4, tab 002). 

Because the record currently contains no other lease or contract, other than the one 

identified in SOF ¶ 1, we assume, for purposes of deciding appellant’s motion, that 

this represents simply a mistake as to the date of the lease. However, to the extent 

appellant’s March 18, 2021, letter is referencing a different document, the parties 

may add additional, relevant documents to the Rule 4 file, as litigation of this 

appeal proceeds.
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2021, letter, and requested that appellant “provide proof of the damages, to include 

justification and verification such as pictures and/or receipts, etc[.] to prove your losses” 

(R4, tab 003). 

9. By letter dated May 8, 2021, GLJ responded to Ms. Simpson’s April 16, 2021, 

letter, providing photographs of appellant’s land and a spreadsheet in support of its 

claimed damages (R4, tabs 004, 007). Appellant stated: 

In addressing the damages to the hay ground, the equipment 

used for harvesting hay and the position of the wells are 

incompatible. Laying down hay in the widest possible swath 

speeds drying, improves quality and saves money on harvest. 

It is impossible to cut close to the stakes around the wells on 

the many lots. Harvest of this crop requires 3-4 cuttings per 

year with crop losses from cutting around each well resulting 

in the production numbers decreasing. In addition, the 

equipment tracks from the contractor are digging deep ruts 

which also hinder the harvest. Wide cutting swaths are the 

single most important factor in maximizing drying rate and 

preserving the quality of the hay.

(R4, tab 004)

10. By letter dated June 14, 2021, Ms. Simpson issued a final decision denying 

GLJ’s claim (R4, tab 005). Ms. Simpson stated, in part:

We have reviewed your claim and find that the wells were 

installed in the locations shown on the exhibit attached to the 

lease and that the Government's operations and activities were 

consistent with the normal operations approved by the lease.

Condition 9 of the Army Lease sets forth the standard for 

establishing damages under the lease. That condition 

specifically states the ‘The Government shall be liable only 

for damage resulting from negligence or misconduct of 

Government personnel or its agents, contractors, or assigns.’

You have not alleged nor provided any evidence of 

Government negligence or misconduct so your claim is 

hereby denied. 

(Id.)
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 11. On June 25, 2021, GLJ submitted to the Board a notice of appeal. On July 6, 

2021, the Board issued a Notice of Docketing, designating the appeal as ASBCA 

No. 62964. 

 

DECISION 

 GLJ, proceeding pro se, seeks compensation for a reduction in crop production 

allegedly caused by actions of the government arising out of the lease. In its motion, GLJ 

cites Section 9 of the lease, which provides “the Government shall be liable for damages 

resulting from negligence or misconduct of Government personnel or its agents, 

contractors, or assigns” (app. mem. at 1). Appellant’s two, one-page, summary judgment 

submissions, however, offer no factual discussion detailing the government’s alleged 

negligence or misconduct during the lease period, or any legal argument establishing that 

GLJ is entitled to judgment as a matter of law. Instead, GLJ makes the following request: 

“[w]e ask for a review by the Board, of the dates and times The Corp [sic] of Engineers 

and their contractor’s presence on the properties that would shed light on the causes of 

the damages claimed. The Corp [sic] of Engineers should be able to provide such 

information for the 5-year period of the lease” (id.). 

 The government responds, stating that there exists a “dispute over the material 

facts as to whether any crop losses actually occurred, let alone if those crop losses were 

caused by the actions of the Government, its employees, or its contractor or agent” 

(gov’t opp’n at 4). In support, the government notes that GLJ “essentially admits that it 

does not know what the actual facts are related to the installation and operation of the 

monitoring well,” that appellant “does not know what actions may have been taken by 

Government employees, contractor employees, or agents, or whether those actions caused 

damage to its property,” and that GLJ “has not provided any proof of alleged damages” 

(gov’t opp’n at 4-5). The government concludes that material facts “preclude the grant of 

summary judgment” (gov’t opp’n at 5). 

 

 As the party asserting the claim, GLJ has the burden of proof. Korea Eng’g 

Consultants Corp., ASBCA No. 61724, 20-1 BCA ¶ 37,538 at 182,285 (citations 

omitted). Specifically, GLJ “has the burden of proving the fundamental facts of liability 

and damages de novo.” Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) 

(en banc)). GLJ must establish three necessary elements, “liability, causation, and 

resultant injury.” Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 

1991). 

 As the party requesting summary judgment, GLJ also “bears the burden of 

establishing the absence of any genuine issue of material fact . . . .” Mingus Constructors 

v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Board Rule 7(c), which sets forth 

the procedures for filing a motion for summary judgment in this administrative body, 

requires a party to “explicitly state and support by specific evidence all facts and legal 
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arguments necessary to sustain a party’s position” and that “[e]ach party should cite to 

the record and attach any additional evidence upon which it relies . . . .” Board Rule 

7(c)(2). Appellant’s summary judgment submissions fail to meet the requirements of our 

rules. Indeed, appellant essentially seeks to place upon the government, and the Board, 

the burden of establishing GLJ’s entitlement to damages, requesting “a review by the 

Board, of the dates and times The Corp [sic] of Engineers and their contractor’s presence 

on the properties that would shed light on the causes of the damages claimed,” and stating 

that the “[t]he Corp [sic] of Engineers should be able to provide such information for the 

5-year period of the lease” (app. mem. at 1). 

We are mindful of “the long-held principle that pleadings drafted by pro se

litigants are generally held to ‘less stringent standards’ than pleadings filed by trained 

attorneys.” Steffen v. United States, 995 F.3d 1377, 1380 (Fed. Cir. 2021) (quoting 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Although the Board accords pro se

litigants leeway administratively, we still must apply the same legal standards to all 

parties. Atlantic Maint. Co., ASBCA No. 40454, 96-2 BCA ¶ 28,472 at 142,195. 

Here, GLJ’s summary judgment filings allege, but fail to establish, entitlement to 

its claim as a matter of law, or the absence of disputed material facts, including whether 

government action caused the damages alleged. The current record is simply inadequate 

to sustain a finding that actions by the government caused a reduction in GLJ’s crop 

production.3F

4

 Accordingly, we hold that appellant, who has the burden of proof, has 

failed to demonstrate the absence of any genuine issue of fact and failed to establish 

entitlement to summary judgment as a matter of law. First Commerce Corp. v. United 

States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“Summary judgment is appropriate if there 

is no genuine issue as to any material fact and the moving party is entitled to judgment as 

a matter of law”); Ballistic Recovery Systems, Inc., ASBCA No. 61333, 19-1 BCA ¶ 

37,223 at 181,202 (“A grant of summary judgment is appropriate when a review of the 

record demonstrates that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law”) (citations omitted). 

GLJ identifies several instances where the Board directed the government to file 

certain pleadings in this appeal, including the government’s answer to appellant’s 

complaint, the Rule 4 file, and a response to appellant’s motion for summary judgment

(app. mot. at 1). Appellant requests that we “order the USACE to pay the reasonable 

expenses, including attorneys incurred as a result” (id.). However, none of the alleged 

failures of the government to timely file certain pleadings, as identified by appellant, 

 4 We have reviewed the documents contained in the Rule 4 file, and have found no 

documents that establish GLJ’s entitlement, as a matter of law, to the damages it 

seeks. Of course, appellant filed its motion for summary prior to the conducting of

discovery in this appeal. Presumably, the Rule 4 file will be supplemented with 

additional documents produced once discovery is complete.
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establish GLJ’s entitlement to payment of “reasonable expenses,” nor do they present a 

proper basis upon which to grant appellant’s motion for summary judgment. Indeed, we 

note that the government has complied with the Board’s orders, and filed the pleadings as 

directed. Moreover, a request for attorney’s fees at this stage in the proceedings is 

premature and not properly before the Board, as such requests are allowed pursuant to the 

Equal Access to Justice Act, 5. U.S.C. § 504.4F

5

 Maintenance Engineers, Inc., ASBCA 

No. 34431, 87-2 BCA ¶ 19,915; J.M.T. Machine Co., ASBCA No. 23928, et al., 86-2 

BCA ¶ 18,928, aff’d, 826 F.2d 1042 (Fed. Cir. 1987). 

CONCLUSION 

 For the reasons stated above, appellant’s motion for summary judgment is denied. 

 

Dated: April 21, 2022 

DAVID B. STINSON

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

 

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 The Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(2), provides, in pertinent 

part, that “[a] party seeking an award of fees and other expenses shall, within 

thirty days of a final disposition in the adversary adjudication, submit to the 

agency an application which shows that the party is a prevailing party and is 

eligible to receive an award under this section . . . .” If GLJ subsequently qualifies 

as a prevailing party otherwise eligible under EAJA, it may file a proper 

application. 

I concur

OWEN C. WILSON

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 62964, Appeal of GLJ, Inc., 

rendered in conformance with the Board’s Charter.

Dated: April 21, 2022

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals