Public Warehousing Company, K.S.C.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Public Warehousing Company, K.S.C. ) ASBCA No. 58088

)

Under Contract No. SPM300-05-D-3128 )

APPEARANCES FOR THE APPELLANT: Michael R. Charness, Esq.

Adrianne L. Goins, Esq.

Elizabeth Krabill Mcintyre, Esq.

Ralph C. Mayrell, Esq.

Vinson & Elkins LLP

Washington, DC

APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.

DLA Chief Trial Attorney

John F. Basiak, Jr., Esq.

Keith J. Feigenbaum, Esq.

Kari L. Scheck, Esq.

Trial Attorneys

DLA Troop Support

Philadelphia, PA

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON

APPELLANT'S MOTION FOR RECONSIDERATION AND TO

CERTIFY QUESTIONS FOR INTERLOCUTORY APPEAL

Before the Board is appellant Public Warehousing Company, K.S.C. 's (PWC's)

motion that we partially lift the one-year stay, which we treat as a timely motion for

reconsideration of our 8 December 2016 opinion. PWC also moves that we certify for

interlocutory appeal the December 2016 opinion as well as our 8 November 2016

opinion granting the government leave to amend its answer to assert affirmative

defenses. We deny both motions.

Motion for Reconsideration

A motion for reconsideration is not the place to present arguments previously

made and rejected. "[W]here litigants have once battled for the court's decision, they

should neither be required, nor without good reason permitted, to battle for it again.

Motions for reconsideration do not afford litigants the opportunity to take a 'second

bite at the apple' or to advance arguments that properly should have been presented in

an earlier proceeding." Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014)

(citations omitted); see also Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA

ii 36,137 at 176,384.

In our December 2016 opinion, we denied the government's motion to dismiss,

but granted its alternate motion to stay, due to the criminal case pending in the district

court. Public Warehousing Company, K.S.C., ASBCA No. 58088, 17-1 BCA

ii 36,589. PWC's motion for reconsideration is largely a rehash of its previous

contentions. 1 We will not disturb an earlier decision merely because, on

reconsideration, the losing side presents the same arguments as before.

Accordingly, we deny PWC's request for reconsideration of our 8 December

2016 opinion.

Motion to Certify November and December 2016 Opinions for Appeal

In the alternative, PWC moves that we certify for appeal to the Court of

Appeals for the Federal Circuit our 8 November 2016 opinion granting the government

leave to amend its answer to assert affirmative defenses, Public Warehousing

Company, K.S.C., ASBCA No. 58088, 16-1 BCA ii 36,555, and our December 2016

opinion staying this appeal.

The Contract Disputes Act provides that:

The decision of an agency board is final, except that-

(A) a contractor may appeal the decision to the

United States Court of Appeals for the Federal Circuit

1 Among other things, PWC faults us for not addressing its citations to three earlier

Board opinions: Kellogg Brown & Root Servs., Inc., ASBCA Nos. 57530,

58161, 16-1BCAii36,449; Suh 'dutsing Techs., LLC, ASBCA No. 58760, 15-1

BCA ii 36,058; and TRW, Inc., ASBCA Nos. 51172, 51530, 99-2 BCA

ii 30,407. But our opinion cited precedent from our reviewing court that

identifies the factors we must balance when there is a parallel criminal case.

The three Board opinions cited by PWC did not involve parallel criminal

proceedings, only civil cases or civil investigations. As a result, they are of

limited utility in this appeal. There is no split from earlier Board decisions

despite PWC's contentions.

2

within 120 days from the date the contractor receives a

copy of the decision ....

41 U.S.C. § 7107(a)(l). 2 Similarly, 28 U.S.C. § 1295, which identifies the jurisdiction

of the Federal Circuit provides that:

(a) The United States Court of Appeals for the Federal

Circuit shall have exclusive jurisdiction-

(I 0) of an appeal from a final decision of an agency board of

contract appeals pursuant to section 7107(a)(l) of title 41.. ..

28 U.S.C. § 1295(a)(l0).

Jurisdiction of the courts of appeal to review interlocutory decisions is

governed by 28 U.S.C. § 1292. This statute specifies a process for district courts, the

Court of International Trade, and the Court of Federal Claims to certify their

interlocutory decisions for review to a Court of Appeals. Congress did not provide for

· such a process for decisions of the boards of contract appeals.

Starting with perhaps an obvious point, it is not our role to determine whether

the Federal Circuit may consider an appeal of our November and December 2016

decisions. The narrow issue before us is whether Congress provided the Board

authority to certify questions for interlocutory review. We have held that the Board

lacks authority to certify questions for interlocutory review under 28 U.S.C. § 1292(b)

because that section applies only to district court judges. General Dynamics Ordnance

and Tactical Systems, Inc., ASBCA Nos. 56870, 56957 10-2 BCA ~ 34,525.

PWC relies upon the decision of the Department of Agriculture Board of

Contract Appeals (AGBCA) in Shawn Montee, Inc., AGBCA No. 2004-153-R et al.,

05-1 BCA ~ 32,889, 3 in which that board concluded that it possessed authority to

certify questions for interlocutory review under 28 U.S.C. § 1292(c)(l) and (d)(2).

Section 1292(c)(l) provides that the Federal Circuit has exclusive jurisdiction:

2 There is no provision in the Contract Disputes Act authorizing a Board of Contract

Appeals to certify an interlocutory decision for review.

3 The AGBCA has been consolidated into the Civilian Board of Contract Appeals.

Pub. L. No. I 09-163, Stat. 3136, 3391 (Jan. 6, 2006).

3

[O]f an appeal from an interlocutory order or decree

described in subsection (a) or (b) of this section in any case

over which the court would have jurisdiction of an appeal

under section 1295 of this title ....

Sections 1292(a) and (b) concern appeals from district courts. The Agriculture Board

read section 1292(c)(l), with its references to sections 1292(b) and 1295, as granting

the Federal Circuit authority to review interlocutory orders from tribunals for which it

has jurisdiction to review final decisions, and granting the boards authority to certify

such questions. The AGBCA explained the absence of any reference to Board judges

in section 1292(b) by stating "We would not expect the federal rules to reference board

judges or address specifically each tribunal over which the Court of Appeals for the

Federal Circuit has jurisdiction." Shawn Montee, 05-1BCAil32,889 at 162,938.

In a non-precedential order, the Federal Circuit denied Shawn Montee's petition

for permission to appeal but did not address the jurisdiction of the boards of contract

appeals to certify questions for interlocutory review. The Court of Appeals simply

stated "we conclude that the better course is for the AGBCA to develop the factual

record and fully adjudicate the legal issues prior to appellate review." Shawn Montee,

Inc. v. Johanns, 131 F. App'x 304 (Fed. Cir. 2005).

We decline to follow the AGBCA's opinion in Shawn Montee. Instead, we

extend our precedent in General Dynamics Ordnance and Tactical Systems to hold

that neither 28 U.S.C. § 1292(b) nor (c) provide us with the authority to certify

interlocutory appeals. We base this determination on the lack of any reference to

interlocutory appeals from administrative tribunals in 28 U.S.C. § 1292, and on

Federal Circuit precedent. The Court of Appeals has held that it lacks jurisdiction to

consider our interlocutory decisions, United States v. WH Moseley Co., 730 F.2d

1472, 1474 (Fed. Cir. 1984) and that it only possesses jurisdiction if the Board

decision is final. Orlando Helicopter Airways, Inc. v. Widnall, 51 F .3d 258, 260 (Fed.

Cir. 1995). Accordingly, we see no basis for the Board to certify interlocutory

questions to the Federal Circuit.

The AGBCA and appellants also rely on the Federal Circuit's decision in

Electronic Data Systems Federal Corporation v. GSA Board of Contract Appeals,

792 F.2d 1569 (Fed. Cir. 1986), in which the Court of Appeals held that it possessed

jurisdiction to review an interlocutory order (an injunction) of the GSBCA. However,

that case involved a bid protest under the Brooks Act where the matter reached the

Federal Circuit in an unusual manner. After the GSBCA issued the order in dispute,

the contractor filed suit in the district court, which issued a temporary restraining order

but then transferred the case to the Federal Circuit, and ordered that the restraining

4

order remain in place during the transfer. Shortly after that, the government and the

contractor filed with the Federal Circuit petitions for writs of mandamus against the

GSBCA. Id. at 1571-74.

The Federal Circuit's opinion in Electronic Data Systems (EDS) contains an

analysis of the court's jurisdiction under 28 U.S.C. § 1292(a) & (c) to review an

interlocutory order issued by the GSBCA. 792 F.2d at 1574-75. The Court of Appeals

concluded that the statute provided it with jurisdiction to review a GSBCA

interlocutory order granting an injunction. Id. at 1575.

PWC contends that we should join with the AGBCA in extending EDS to

non-injunctive interlocutory decisions issued in the context of a Contract Disputes Act

(CDA) dispute. We believe that this is foreclosed by the Federal Circuit's decision in

United States v. WH Moseley, which has not been overruled by the Federal Circuit en

bane. For purposes of the narrow issue under consideration, EDS reached the Federal

Circuit through a combination of a district court transfer and petitions for writs of

mandamus filed by the parties, not because the GSBCA certified a question for

interlocutory review. Thus, EDS does not provide any support for a Board power to

certify interlocutory decisions.

PWC (and the AGBCA in Shawn Montee) contend that we also possess

jurisdiction to certify interlocutory decisions through the interplay of the CDA,

41 U.S.C. § 7105(e)(2), and 28 U.S.C. § 1292(d)(2). The former provides that, in

exercising our jurisdiction, the Board "may grant any reliefthat would be available to a

litigant asserting a contract claim in the United States Court of Federal Claims." The

latter provides judges of the Court of Federal Claims the authority to certify questions

for interlocutory review. Appellant and the AGBCA conclude from these provisions

that, because the Court of Federal Claims can certify an interlocutory decision in a

CDA case, then we can too.

While these contentions have some surface appeal we do not believe that the

provision at 41 U.S.C. § 7105(e)(2) should be read so broadly to mean that the Board

in a CDA appeal enjoys the same powers as the Court of Federal Claims. See Fidelity

Constr. Co. v. United States, 700 F.2d 1379, 1387 (Fed. Cir. 1983). That court's

power to certify interlocutory questions arises from 28 U.S.C. § 1292(d)(2), not the

CDA, and we do not believe that we can assume the court's powers based on a mere

inference. Such an expansive reading of our CDA powers conflicts with our

precedent. For example, under the Rules of the Court of Federal Claims (RCFC), the

court possesses authority (in CDA and other cases) to award attorney fees in a variety

of situations. See RCFC 11, 16, 37, 45; 28 U.S.C. § 1927. We lack such authority.

ADT Construction Group, Inc., ASBCA No. 55358, 13 BCA if 35,307 at 173,324.

5

Similarly, the Court of Federal Claims possesses authority to punish contempt of its

authority by fine or imprisonment, 28 U.S.C. § 252l(b), a power that we lack.

Accordingly, we reject PWC's contention that 41 U.S.C. § 7105(e)(2) and 28 U.S.C.

§ 1292(d)(2) provide us with the authority to certify interlocutory decisions.

PWC's motion to certify interlocutory questions is denied.

Dated: 7 March 2017

11(,J,.Qf)') ,()~

MICHAEL N. O'CONNELL

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

--77

0"// #:

F2q~~~

/1

RICHARD SHACKLEFORD

Administrative Judge 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. 58088, Appeal of Public

Warehousing Company, K.S.C., rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

6