ASBCA 59637

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Matcon Diamond, Inc. ) ASBCA No. 59637 ) Under Contract No. W912KC-12-C-0002 ) APPEARANCES FOR THE APPELLANT: David A. Levine, Esq .. Haig M. Sakoian, Esq. Blumling & Gusky, LLP Pittsburgh, PA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Harry M. Parent, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Appellant, Matcon Diamond, Inc., appeals from the contracting officer's 30 July 2014 final decision denying its 29 April 2014 certified claim seeking to recover extended home office overhead costs in the amount of $360,742.92 under the captioned contract for the repair of the Pennsylvania National Guard's aircraft apron at the Pittsburgh International Airport. We have jurisdiction pursuant to the Contract Disputes Act, 41 u.s.c. §§ 7101-7109. The government moves to dismiss this appeal for failure to state a claim upon which relief can be granted. The government argues that appellant's claim is barred because appellant failed to assert its claim prior to final payment (gov't mot. at 4). Appellant contends that the government's motion should be denied because it impermissibly relies on evidence outside of appellant's complaint (app. opp'n at 4-6). Appellant further maintains that the evidence presented by the government is insufficient to establish that final payment was made under the contract (id. at 6-8). A motion to dismiss for failure to state a claim upon which relief can be granted is appropriate where the facts asserted in the complaint do not entitle the claimant to a legal remedy. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). In deciding a motion to dismiss for failure to state a claim, we "must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor of the claimant." Kellogg Brown & Root Services, Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013). We decide only whether the claimant is entitled to offer evidence in support of its claims, not whether the claimant will ultimately prevail. Chapman Law Firm Co. v. Greenleaf Construction Co., 490 F.3d 934, 938 (Fed. Cir. 2007). The scope of our review is limited to considering the sufficiency of the allegations set forth in the complaint, "matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record." A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (alteration in original) (citation omitted); see also Zakv. Chelsea Therapeutics Int'!, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (On a motion to dismiss for failure to state a claim, "courts are limited to considering the sufficiency of allegations set forth in the complaint and the documents attached or incorporated into the complaint.") (internal quotation marks and citation omitted). A party is not required to negate an affirmative defense in its complaint. ABB Turbo Sys. AG v. TurboUSA, Inc., 774 F.3d 979, 985 (Fed. Cir. 2014); Flying Food Group, Inc. v. NLRB, 471F.3d178, 183 (D.C. Cir. 2006). Dismissal for failure to state a claim on the basis of an affirmative defense is proper only where the defense clearly appears on the face of the complaint. ASARCO, LLC v. Union Pacific R.R., 765 F.3d 999, 1004 (9th Cir. 2014); Kelly-Brown v. Winfrey, 717 F.3d 295, 308 (2nd Cir. 2013); Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993); see also Ruiz-Sanchez v. Goodyear Tire & Rubber Co., 717 F.3d 249, 252 (1st Cir. 2013) (Dismissal for failure to state a claim "on the basis of an affirmative defense requires that (i) the facts establishing the defense are definitively ascertainable from the complaint and other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude."). The government's final payment defense is an affirmative defense on which it bears the burden of proof. See Electro-Technology Corp., ASBCA No. 42495, 93-2 BCA ~ 25,750 at 128,133. Final payment to the contractor bars claims which are submitted subsequent to the final payment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).