Christine Odell Cook Miller

“ On June 1, 2001, this court granted defendant’s motion to dismiss for lack of jurisdiction and directed entry of judgment against plaintiff without prejudice. See Int’l Air Response v. United 4 States, 49 Fed. Cl. 509 (2001) (“Int’l Air I”) . The court ruled that the deadline to file an action in court prescribed by the CDA was not tolled because the Arizona federal district court lacked the authority and jurisdiction to stay the filing deadline and was not tolled by the doctrine of equitable tolling. ”

“ AND PROCEDURAL HISTORY International Air Response, Inc. (“plaintiff”) , originally challenged a contracting officer’s decision that plaintiff’s 1989 Exchange Agreement (the “Agreement”) with the United States Forest Service (the “Forest Service”) was illegal. The Agreement called for T&G Aviation, Inc., plaintiff’s predecessor, to provide three historic aircraft to museums designated by the Forest Service. In exchange, plaintiff would receive three C-130A military transport airplanes, which plaintiff could modify for air tanker use. ”

“ The DC-7B was the first DC-7 air tanker to be commercially used, Tr. at 56, and in 1989 was still a revenue-generating asset for plaintiff. Plaintiff delivered the DC- 7B aircraft to the Pima Air Museum in Tucson, Arizona. The SNB5 was a historic military aircraft. The Forest Service used it for smoke jumpers and as a spotter aircraft for many years. In addition, the aircraft held the cross-country speed record during the 1940s. Plaintiff was directed to take the aircraft to the Planes of Fame Museum in Chino, California. ”

“ CONCLUSION Plaintiff has proved that it was a bona fide purchaser for value of the subject aircraft. Defendant has failed to prove that it is entitled to recover on its counterclaim. Accordingly, based on the foregoing, the Clerk of the Court shall enter judgment (1) for plaintiff on plaintiff’s prayer that the contracting officer’s decision be set aside and (2) for plaintiff against defendant on defendant’s counterclaim. ”

“ Plaintiff in Dubin I and Dubin II acquired radar and radio equipment, which had been sold as surplus property by the Government. In summer 1950 plaintiff purchased four lots of property from the Government at auction and purchased more surplus equipment from third parties. The lot at issue in Dubin I and Dubin II, No. 23, contained surplus radar receivers and radar transmitter-receiver units, among other items. In August 1950 it was discovered that some of the surplus property was classified equipment. ”

“ Mr. Grantham testified that he had acquired the UH-19B helicopter more than five years before the Forest Service exchange, estimating that it was worth approximately $375,000.00 when he delivered it to the museum in Lancaster, California.
After exchanging the aircraft, plaintiff received an Aircraft Bill of Sale (“Bill of Sale”) from the United States Department of Transportation. Each Bill of Sale recited the consideration paid; the SNB5, DC-7B, or UH-19B aircraft, respectively; and the serial numbers of the respective C-130A airplanes that plaintiff was receiving in return. ”

“ It seems plain that the section cannot cover information about all those activities which became tributary to “the national defense” in time of war; for in modern war there are none which do not. . . . [E] very part in short of the national economy and everything tending to disclose the national mind are important in time of war and will then “relate to the national defense.” ”

“ First, defendant contends that “the aircraft IAR provided in the exchange were not of comparable value to the C-130 [A] s it received.” Def.’s Br. filed Nov. 7, 2006, at 5. The record is of no assistance to defendant. Mr. Grantham estimated that the aircraft plaintiff provided in the exchange were worth over $1,000,000.00 in 1989. See Tr. 140-43. Further, defendant failed to produce evidence disputing Mr. Grantham’s estimates, or to provide an estimate as to the value of the C-130A airplanes as of the date of exchange. ”

“ Moreover, far from being “a give-away program,” the evidence established that, in addition to giving the Forest Service three historic aircraft, plaintiff spent approximately $2,000,000.00 retro-fitting the three C-130A airplanes. Plaintiff’s investment in the C-130A airplanes includes the following expenditures: (1) over $1,200,000.00 for retardant tank equipment; (2) between $120,000.00 and $140,000.00 per plane to place improved or different radio equipment and avionics into the aircraft, so that the aircraft would meet civilian licensing requirements ”

“ The Forest Service will provide three C-130A aircraft to the Exchanger [plaintiff] on an as-available basis for use as firefighting air tankers, and they may only be flown in support of forest, brush, or rangeland protection: C-130A S/N 56-0478 C-130A S/N 54-1631 C-130A S/N 57-0512 The Exchanger will provide to the Forest Service the following fully restored and flyable aircraft: [4] DC-7B [S/N] 44-701 SNB5 S/N 89-468 UH-19B S/N . . . 55-4943 This exchange is made under authority of GSA Regulation 101-46.203. ”

“ Eitel, a 1994 action under the False Claims Act, 31 U.S.C. § 3729 (1994) , was brought against all the aviation companies, including plaintiff, involved in the Forest Service’s aircraft exchange program. See id. The Government declined originally to intervene in this qui tam action. After the United States District Court for the District of Oregon dismissed the action and appellate briefing and argument were completed, the United States Court of Appeals for the Ninth Circuit allowed the Government to intervene. ”

“ Then after that then we had to have the retardant tanks built and the systems built to put in the aircraft to make them qualified for air tankers or firefighting aircraft. Tr. at 72-73. Nothing in the record countermands the facts, as recited above. Plaintiff filed this action on July 21, 2000, challenging a November 27, 1998 decision by a Ronald E. Hooper, Contracting Officer for the Forest Service, which sought the return of the three C-130As. ”