Environmental Safety Consultants, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Environmental Safety Consultants, Inc. ) ASBCA No. 58343

)

Under Contract No. N62470-95-B-2399 )

APPEARANCE FOR THE APPELLANT: Mr. Peter C. Nwogu

President

APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.

Navy Chief Trial Attorney

Ellen M. Evans, Esq.

Senior Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE FREEMAN

ON APPELLANT'S MOTION FOR RECUSAL

Environmental Safety Consultants, Inc. (ESCI) is appealing the deemed denial

of its termination settlement claim. After extensive pre-hearing proceedings, ESCI

now moves for recusal of the presiding judge and his panel on the grounds that they

have a bias and prejudice against appellant that makes a fair judgment impossible.

Alternatively, ESCI asks that we voluntarily transfer the appeal to the Civilian Board

of Contract Appeals (CBCA). The government has not responded to the motion.

After careful consideration, we find the motion without merit.

ESCI contends that: "The Board's administration of appellant's appeal is

plagued with bias and prejudice as demonstrated in the rejection of a[ n] evidential

hearing in appellant's ASBCA No. 58343 T4C, the denial of ASBCA No. 51722-

Appellant's Equal Access for Justice Act, the denial of ASBCA 58221 and ASBCA

58847-Appellant's Request for Payment of Invoice No. 7" (mot. at 2).

The rejection of an evidential hearing to which ESCI refers was a rejection of

ESCI's proposed hearing dates of 15-18 February 2014 because those dates did not

allow for completion of a Defense Contract Audit Agency (DCAA) audit report on the

claim. The audit report was not completed and published until 24 February 2014 (Bd.

corr. file). On 2 April 2014 the Board requested the parties to confer and propose a

mutually agreed hearing date no later than 15 May 2014 (Bd. corr. file email). The

parties to date have engaged in extensive motion practice and have not yet proposed a

mutually agreed hearing date for ASBCA No. 58343. 1

The Board's decisions in favor of the government in the EAJA claim in

ASBCA No. 51722 (13 BCA ~ 35,352, aff'd on recon., 14-1BCA~35,468, 2nd

recon. dismissed, 14-1BCA~35,520) and in the Invoice No. 7 appeals in ASBCA

Nos. 58221 (13 BCA ~ 35,329) and 58847 (14-1BCA~35,510) are no more

indicative of bias and prejudice against ESCI than the Board's decision in favor of

ESCI in the default termination appeal in ASBCA No. 51722 ( 11-2 BCA ~ 34,848) is

indicative of bias and prejudice against the government. We note in this regard that

the decision in ASBCA No. 51722 ( 11-2 BCA ~ 34,848) converting the default

termination to a convenience termination, without which ESCI would have no

termination settlement claim, was authored by the presiding judge in the present

appeal. The same judge also authored the Board's denial of the government's Motion

for Relief from Judgment from that decision (13 BCA ~ 35,316).

ESCI alleges that the presiding judge's suggestion of, and request for briefs on,

a potential lack of jurisdiction over a substantial amount of ESCI' s termination

settlement claim, and other interlocutory rulings and comments "with intent to favor

the Government. .. are evidence of deep-seated favoritism and partiality in favor of the

government" (mot. at 6). The ESCI termination settlement claim included substantial

amounts for changes and delays by the government incurred in contract performance

which, insofar as the pre-hearing record indicated, had not been submitted as claims

under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, within the

time prescribed for such claims. Considering that the CDA statute of limitations on

the submission of claims is jurisdictional, see Taj Al Rajaa Company, ASBCA

No. 58801, 14-1BCA~35,522 at 174,104, there were reasonable grounds for the

presiding judge's request for the parties to brief the issue.

ESCI states that: "the Board's management of appellant's appeal is based on

innuendos and false representations of the fact that the Board is receiving from

perceived extra judiciary communications between the Board and the Navy," and that

"[the presiding judge's] comment that appellant did not cooperate with DCAA audit

could have been derived from extrajudicial source since there was no evidential

1

ESCI states that "[the presiding judge] required appellant to travel with his

witnesses to [the Board's offices in Falls Church, Virginia] for the T4C hearing

in June 2014" (mot. at 16). The June hearing date was suggested, not required,

by the presiding judge, and both parties declined the suggested date.

Subsequently, ESCI's President and legal representative in the appeal requested

a "leave" from Board proceedings for the period 10 July-15 September 2014

for family commitments (Bd. corr. file, email <ltd. 24 June 2014). The Board

granted the request (Bd. corr. file, ltr. <ltd. 18 July 2014).

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hearing to determine whether appellant cooperated with DCAA audit process"

(mot. at 5-6, 8). There is not a scintilla of evidence supporting ESCI' s allegations of

"perceived extra judiciary communications" between the Board and the Navy

regarding ESCI' s lack of cooperation with the DCAA audit. There is ample

documentation in the pre-hearing record, culminating in the 24 February 2014 DCAA

audit report, from which the presiding judge could reasonably question ESCI's

cooperation with the audit2 (Bd. corr. file, DCAA Audit Report, 24 February 2014).

The standard for recusal of the Board or a presiding judge is stated in Corners

and Edges, Inc., ASBCA No. 55611 et al., 10-1 BCA ii 34,326 at 169,530, quoting the

Supreme Court in Liteky v. United States, 510 U.S. 540, 555-56 (1994), in pertinent

part as follows:

First, judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion [citation omitted]. In

and of themselves (i.e., apart from surrounding comments

or accompanying opinion), they cannot possibly show

reliance upon an extrajudicial source; and can only in the

rarest circumstances evidence the degree of favoritism or

antagonism required (as discussed below) when no

extrajudicial source is involved. Almost invariably, they

are proper grounds for appeal, not for recusal. Second,

opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a

basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair

judgment impossible. Thus, judicial remarks during the

course of a trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge. They may do so

if they reveal an opinion that derives from an extrajudicial

source; and they will do so if they reveal such a high

degree of favoritism or antagonism as to make fair

judgment impossible .... Not establishing bias or partiality,

however, are expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the bounds of

2

The audit report stated that it could not provide an audit opinion because, contrary to

FAR 49.206-2(b)(2), "ESCI's termination for convenience settlement proposal

was not prepared using actual costs incurred through the effective date of the

termination, but instead was based on an estimated increased contract price"

(Bd. corr. file, DCAA Audit Report at 4).

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what imperfect men and women, even after having been

confirmed as federal judges, sometimes display. A judge's

ordinary efforts at courtroom administration-even a stem

and short-tempered judge's ordinary efforts at courtroom

administration-remain immune. [Emphasis in original]

The Board's decisions denying the Equal Access to Justice Application in

ASBCA No. 51722 and the Invoice No. 7 claims in ASBCA Nos. 58221and58847,

and the presiding judge's request for briefing, interlocutory rulings and comments on

the case to the parties in the course of the pre-hearing proceedings, are clearly within

the Liteky rule quoted above. "Moreover, allegations of unlawful bias or other

unlawful conduct must be supported by evidence. Mere conclusory statements are

insufficient." Corners and Edges, 10-1 BCA ii 34,326 at 169,530. ESCI has not

shown any "extrajudicial source" involved in those Board decisions, or in the

interlocutory rulings or comments of the presiding judge. Nor has it shown any

comment or conduct of the Board or presiding judge indicating "such a high degree of

favoritism or antagonism as to make a fair judgment impossible."

In Environmental Safety Consultants, Inc., ASBCA No. 54995, 06-2 BCA

ii 33,321 (an appeal under an Army Corps of Engineers contract), ESCI sought, on

reconsideration, the removal of the presiding judge because "[he] has demonstrated

pattern of suspect of extremely sympathetic to government's side of the cases he

reviewed" (syntax in original). Id. at 165,212. In that appeal, we held that: "A

judge's decisions in the instant case or in past cases are not valid grounds for his

recusal. . . . Movant has identified no statement or conduct of [the presiding judge] or

any of the other judges who concurred with the decisions ... that show 'personal bias or

prejudice' concerning appellant." Id. at 165,213. That is also the case here.

Finally, even if we were so inclined, appellant has pointed to no authority and

we are aware of none, that permits the transfer of an appeal from the ASBCA to the

CBCA.

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CONCLUSION

The motion is denied.

Dated: 2 September 2014

MAN, JR.

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

~~~~~

Administrative Judge

~RD

Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

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. 58343, Appeal of

Environmental Safety Consultants, Inc., rendered in conformance with the Board's

Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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