LACY H. THORNBURG, District Judge
THIS MATTER is before the Court on the Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3). The appropriate response and reply have been filed and the motion is ready for resolution.
I. SUMMARY OF FACTS
This dispute arises over an agreement made by the parties in which the Plaintiff Brevard Management Group would sell a piece of land in Brevard, North Carolina, to the Defendant, the United States Postal Service. Complaint, filed March 14, 2002 at 2. In conjunction with the proposed sale, the Plaintiff made specified improvements and renovations to the land, including the "demolition of existing income-producing improvements, and grading and drainage work on the [p]roperty." Id., at 2-3. After extensive work by the Plaintiff, Defendant informed Plaintiff that, in an attempt to reduce spending, it would not be purchasing the land. Id., at 4.
Plaintiff filed this breach of contract suit against the Defendant on March 14, 2002. The Defendant has filed a motion to dismiss, claiming this Court does not have subject matter jurisdiction. Defendant argues that the Contract Disputes Act, 41 U.S.C. § 601 et seq. (hereinafter, "CDA"), applies, which removes subject matter jurisdiction from federal courts and establishes its own "administrative and judicial procedures for resolving disputes" between the United States and government contractors. Memorandum of Law in Support of the Defendant's Motion to Dismiss ["Defendant's Memorandum"], filed December 11, 2002 at 5.
II. DISCUSSION
When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Trentacosta, supra, 813 F.2d at 1558. Richmond, Fredricksburg, Potomac R.R. CO. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Generally, federal courts have subject matter jurisdiction over "all actions brought by or against the Postal Service." 39 U.S.C. § 409(a). If a claim falls under the CDA, federal courts do not have subject matter jurisdiction. United States v. J E Salvage Co., 55 F.3d 985, 987 (4th Cir. 1995); Coconut Grove Entertainment, Inc. v. United States, 46 Fed.Cl. 249, 255 (2000). Rather, the claim must first be decided by a contracting officer. 41 U.S.C. § 605. That decision may be appealed to an agency board of contract appeals or to the United States Court of Federal Claims. 41 U.S.C. § 607, 609. An appeal from either one of those bodies will then be heard by the United States Court of Appeals for the Federal Circuit. 41 U.S.C. § 607; see also, J E Salvage Co., supra. If a claim falls under the CDA, then this Court lacks subject matter jurisdiction. The determinative issue, then, is whether the CDA does, indeed, apply to this dispute.
The CDA governs disputes over certain contracts made by an executive agency of the federal government. According to the relevant statute:
Unless otherwise specifically provided herein, this chapter applies to any express or implied contract . . . entered into by an executive agency for —
(1) the procurement of property, other than real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair or maintenance of real property; or
(4) the disposal of personal property.
41 U.S.C. § 602(a).
If the contract in dispute is for the procurement of "real property in being," then the CDA will not apply. 40 U.S.C. § 602(a)(1). "The legislative history of the Disputes Act contains little illuminating Congress' intended meaning of the phrase `real property in being.'" Forman v. United States, 767 F.2d 875, 878 (Fed. Cir. 1985). The Congressional floor debate provides minimal interpretive assistance, other than explaining that the CDA applies to "`contracts entered into by the United States for (1) the procurement of property (other than the procurement of real property in being which is governed by the laws of eminent domain.).'" Id., at 878 (quoting 124 Cong. Rec. 31,645 (1978)). After examining the language and legislative history of the CDA, along with the nearly-identical language of the Office of Federal Procurement Policy Act, the court in Forman concluded that real property in being "refers to the procurement of existing interests — fees, easements, leases, etc. — and not the initial creation of these interests." Id., at 879; see also Spodek v. United States, 26 F. Supp.2d 750, 756 (E.D.Pa. 1998).
In the current case, the contract at issue was for the fee simple title to the land belonging to the Plaintiff. See, Exhibit A, "Offer to Sell," attached to Defendant's Memorandum, at 1. Under Forman, this acquisition of an already existing fee simple is "real property in being" and, therefore, is exempted from the CDA.
Defendant further argues, however, that because the Offer to Sell included services to the land and site work to be performed by the Plaintiff, the contract is governed by the CDA, pursuant to 41 U.S.C. § 602(a)(3). For example, the Offer to Sell provided that:
Over and above the agreed upon price for this site, the Postal Service will contribute $20,000 as it's [sic] share of the cost of constructing the joint use driveway, said monies to be paid at closing. . . . In addition to all previously referenced monies to be paid to offeror/seller the Postal Service will contribute $25,000 to the cost of constructing the storm drain and storm water control systems, said monies to be paid by the Postal Service at closing.
See id., revised ¶ 17. Defendant contends that because the agreement at issue is for both the purchase of real property and for "substantial construction and alteration services" to the property, it should be governed by the CDA. Defendant's Reply Brief, filed January 2, 2003, at 5. The law regarding such joint purpose contracts, however, is not so clearly defined.
In cases involving joint purpose contracts, "it is necessary to examine the nature of the dispute between the parties to resolve the jurisdictional issue." Bonneville Assoc. v. United States, 43 F.3d 649, 654 (Fed. Cir. 1994). Bonneville involved the sale of an existing office building to the federal government through the General Services Administration. Id., at 651. As a part of the sales agreement, Bonneville was required to make extensive repairs and alterations to the building in order to make it appropriate for government use. Bonneville was further required to continue to make repairs after ownership of the building changed hands. Id. A portion of the contract price was to be withheld and remitted as the maintenance work was performed. The Federal Circuit Court of Appeals affirmed the decision of the Court of Federal Claims and held that the CDA applied to this controversy. Id., at 655.
In examining the nature of the current dispute, however, the undersigned finds that it is distinguishable, in important and significant respects, from Bonneville. In Bonneville, the dispute at issue was over the repair and maintenance clauses of the contract only. There was no disagreement over the sale itself. As the court noted, the real dispute "did not involve such matters as title to the property, the consideration received for it, or other aspects of the conveyance, which would more clearly be disputes over the procurement of real property [in being]." Id., at 654. Further, the problems in Bonneville were over structural defects and a deficient heating and air conditioning system. These disputes arose "[a]fter title was conveyed to the government." Id., at 651. The court found that jurisdiction in the Court of Federal Claims was proper under 40 U.S.C. § 602(a)(3) because "the dispute between the parties only concerned Bonneville's duty to repair and alter the building." Id., at 654 (emphasis added).
Unlike the situation in Bonneville, the current case concerns only the procurement of real property in being. The clauses in the contract that concern the repair and renovation to the land are not in dispute. Plaintiff acknowledges that it is not suing about the "services" outlined in the agreement which they have performed. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, filed December 24, 2002, at 6. Further, the real estate specialist for the Postal Service involved in this matter, Robert Hill, has testified that the Postal Service did not enter into any contract with the Plaintiff for real estate services such as construction or renovations. Deposition of Robert E. Hill, attached to Plaintiff's Supplemental Exhibits, filed February 21, 2003, at 135. The nature of the controversy in the current case, therefore, is the procurement of real property in being. As such, the CDA does not apply and subject matter jurisdiction lies in this court. 40 U.S.C. § 602(1)(a).
IT IS, THEREFORE, ORDERED that the Defendant's motion to dismiss is hereby DENIED.