The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
The Boeing Company ) ASBCA Nos. 58030, 58593, 58594
) 58660, 59212,59220
) 59813,60376,60403
) 60411,60522,60736
)
Under Contract No. 000000-00-0-0000 et al. )
APPEARANCE FOR THE APPELLANT: Seth H. Locke, Esq.
Perkins Coie
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.
DCMA Deputy Chief Trial Attorney
Lawrence S. Rabyne, Esq.
Trial Attorney
Defense Contract Management Agency
Arlington Heights, IL
Robert L. Duecaster, Esq.
Kara M. Klaas, Esq.
Trial Attorneys
Defense Contract Management Agency
Chantilly, VA
OPINION BY ADMINISTRATIVE JUDGE NEWSOM ON
APPELLANT'S MOTION FOR RECONSIDERATION
Boeing seeks reconsideration ofthe Board's May 23, 2018 decision denying its
motion to suspend these 12 Boeing appeals, or in the alternative to dismiss them
without prejudice. 1 The Boeing Company, ASBCA No. 58030 et al., 18-1 BCA
,i 37,067. The motion for reconsideration is denied.
Boeing also requests that the Board's Senior Deciding Group consider its
motion for reconsideration. Under the Board's rules, the Chairman may refer an
appeal to the Senior Deciding Group if the appeal is of unusual difficulty, of
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significant precedential importance, or if the appeal has occasioned serious dispute
within the normal division decision process. ASBCA Rules, Preface, Part II( c), 48
C.F.R. Chapter 2, App'x A, Part 2. The Chairman has reviewed Boeing's motion and,
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The government declined to respond to either motion (gov't ltr. dtd. July 9, 2018).
as the decision does not meet the aforementioned criteria, declines to refer the matter
to the Senior Deciding Group.
Reconsideration might be appropriate if the request "is based upon newly
discovered evidence, mistakes in the findings of fact, or errors of law." Green Valley
Co., ASBCA No. 61275, 18-1 BCA ,r 37,044; Alliance Roofing & Sheet Metal, Inc.,
ASBCA No. 59663, 15-1 BCA ,r 36,063. Reconsideration is not intended to "provide
a party with the opportunity to reargue its position." Robinson Quality Constructors,
ASBCA No. 55784, 09-2 BCA ,I 34,171 at 168,911.
Boeing principally contends that the Board imposed an improper, "heightened"
legal standard that Boeing asserts is applicable only to "contested" motions for
suspension or dismissal under Board Rule 18, rather than what Boeing assumes is a
more-relaxed legal standard applicable to uncontested motions (app. mot. at 3).
Boeing is incorrect. Rule 18, by its plain terms, does not create different legal
standards depending upon whether a motion is, or is not, contested. The Rule allows
the Board to grant a stay or dismissal without prejudice on a showing of "good cause."
The Rule contains no different standard for uncontested motions. We applied exactly
that "good cause" standard in rejecting Boeing's motion. See Boeing, 18-1 BCA
,r 37,067 at 180,426-28.
Board case law also does not create a different standard for contested motions.
Rather, we make case-by-case judgments as to whether good cause exists, based upon
many factors. Public Warehousing Company, ASBCA No. 56116, 08-1 BCA ,r 33,787
at 167,227-29; Kellogg Brown & Root Services, Inc., ASBCA No. 56358, 11-1 BCA
,r 34,614 at 170,603-05. The relative weight ascribed to these factors varies from case
to case, but the standard for evaluating the stay request- good cause - remains the
same. The Board in its discretion typically considers the impact on the non-moving
party, but we are aware of no authority- and Boeing cites none- requiring the Board
to grant a stay request, simply because the motion is uncontested. To the contrary, no
party has a per se right to a stay or dismissal at the Board. WEDJ/Three C's, Inc.,
ASBCA Nos. 53747, 53756, 05-2 BCA ,I 33,070 at 163,896.
Here, Boeing's justification for a stay/dismissal was so unpersuasive and
lacking in merit that the absence of prejudice to the government could not salvage it,
even if the standard were relaxed. We explained the flaws in Boeing's motion in our
decision and do not repeat them, except to emphasize two observations.
First, Boeing elides, as it has throughout, the fact that Boeing is the author of its
own fortunes. Boeing chose to file these 12 appeals at the Board. Then Boeing, along
with the government, chose to ask the Board to stay these appeals, repeatedly, for the
last six years. As a result, these 12 appeals have not moved forward. Boeing then
chose to file new cases at the Court of Federal Claims (COFC), then it chose, with
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government concurrence, to request an additional stay of the Board appeals while it
pursues that COFC litigation. This situation was not foisted on the parties; is not "the
extraordinary result of an unusual combination of circumstances," as Boeing puts it
(app. mot. at 7). The present situation is the result of the parties' strategic choices. In
these circumstances, it was a tall order for Boeing to persuade us that it should not
have to litigate appeals that Boeing itself chose to file, and unsurprising that it failed to
do so.
Second, Boeing's argument rests on a prediction that a possible future decision
from the Federal Circuit, on appeal from a possible future COFC decision, will make
it easier to resolve these Board appeals (app. mot. at 7). The parties have consistently
predicted that future decisions in other cases would resolve these appeals, and they
have consistently been wrong. 2 See Boeing, 18-1 BCA ,r 37,067 at 180,424, SOF
,r,i 7-11. We are no longer willing to accept their predictions.
Indeed, little if anything would be gained by a stay. A Federal Circuit decision
on the one issue common to the COFC cases and the Board appeals - Cost Impact
Aggregation - will not significantly accelerate resolution of these appeals. As our
decision explains, each Board appeal presents issues other than Cost Impact
Aggregation. Boeing, 18-1 BCA ,r 37,067 at 180,424, SOF ,r 3. Ifthe Federal Circuit
eventually rules, then discovery and other proceedings at the Board will still be
necessary to resolve the remaining issues. Ifwe stay these appeals, by the time the
Federal Circuit rules (if it does rule), the appeals will be even older than they are now.
Instead of the oldest appeals starting discovery after 6 years of waiting (as now), they
may be 8, 9, or possibly 10 years old when they finally commence discovery. Ifwe
stay these appeals but no Federal Circuit decision is issued on the merits, the delay will
have been pointless. Moreover the Board will not carry inactive appeals on the active
docket for an indefinite period of time.
Boeing's remaining bases for reconsideration reflect mere disagreement with
the Board's conclusions and thus do not warrant reconsideration.
2 Boeing asserts that a Federal Circuit appeal is "certain" because both parties have
"unequivocally" stated their intention to appeal from an adverse COFC decision
(app. mot. at 17). This assertion is not correct. The transcript portions to which
Boeing cites contain no such "unequivocal" commitment, and Boeing's
characterization is contradicted by the fact that only the Solicitor General (SG)
may authorize a government appeal. 28 C.F.R. § 0.20(b). Not surprisingly, the
SG has not authorized the government to appeal, as there is no COFC decision
yet from which an appeal could be taken (gov't ltr. dtd. July 12, 2018).
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CONCLUSION
The motion for reconsideration is denied.
Dated: August 20, 2018
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
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 Nos. 58030, 58593, 58594,
58660, 59212, 59220, 59813, 60376, 60403, 60411, 60522, 60736, Appeals of The
Boeing Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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