Advanced Powder Solutions, Inc. v. United States

In the United States Court of Federal Claims

No. 20-137C

(Filed: March 22, 2022)

)

ADVANCED POWDER SOLUTIONS, )

INC., )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

Bryant S. Banes, Neel, Hooper & Banes P.C., Houston, TX, for Plaintiff. With him on the

briefs was Sarah P. Harris.

Eric J. Singley, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C. With him on the briefs were Brian M. Boynton, Acting

Assistant Attorney General, Martin F. Hockey Jr., Acting Director, and Steven J.

Gillingham, Assistant Director.

OPINION AND ORDER

SOLOMSON, Judge.

This case arises under two contracts between Plaintiff, Advanced Powder

Solutions, Inc. (“APS”), and Defendant, the United States, acting by and through the

Department of Defense (“DOD”), specifically through the Missile Defense Agency

(“MDA”). APS challenges a Contracting Officer’s (“CO”) Final Decision (“COFD”),

issued February 11, 2019, that asserts a government claim for $134,069.00 stemming

from an alleged overpayment made to APS during the performance of the contracts.

APS, in its complaint filed with this Court, ECF No. 1 (“Compl.”), challenges the COFD,

and seeks declaratory and injunctive relief pursuant to the Contract Disputes Act

(“CDA”).1 APS now moves to dismiss the government’s claim pursuant to Rule 12(h)(3)

of the Rules of the United States Court of Federal Claims (“RCFC”) for lack of subject-

1 Pub. L. No. 95-563, 92 Stat. 2383 (1978) (codified at 41 U.S.C. §§ 7101–7109).

matter jurisdiction. 2 For the reasons explained below, the Court DENIES APS’s motion

to dismiss.

I. PROCEDURAL AND FACTUAL BACKGROUND3

On or about June 9, 2006, and May 1, 2007, the government awarded APS

Contract Nos. HQ0006-06-C-7351 (“Contract 7351”) and HQ0006-07-C-7601 (“Contract

7601”) (collectively, the “MDA Contracts”). Compl. ¶ 4. On February 11, 2019, the

cognizant CO issued a COFD asserting that the government overpaid APS for FY 2006-

2010 on the MDA Contracts, including $27,612.00 for Contract 7351 and $106,457.00 for

Contract 7601. See Pl. Mot. at 1.4

On February 7, 2020, APS filed a complaint in this Court to challenge the

government’s claim contained in the COFD. Compl. ¶ 4. APS seeks declaratory and

injunctive relief; specifically, APS seeks “a declaration that it did not overcharge the

government and that [APS] does not owe the government any monies under the

government claims.” Id. ¶ 9. This case was transferred to the undersigned on

November 19, 2021. See ECF Nos. 53, 54. At the time of the transfer, multiple motions

were fully briefed and ripe for decision. See ECF Nos. 23–24, 28–29, 32–33 (cross-

motions for summary judgment); Nos. 43, 48, 49 (APS’s motion to dismiss); Nos. 50–52

(APS’s motion to compel).

2While APS cites to Rule 12(h)(3) of the Federal Rules of Civil Procedure (“FRCP”), see, e.g., ECF

No. 43 (“Pl. Mot.”) at 1 n.1, the RCFC applies in this Court. RCFC 12(h)(3) and FRCP 12(h)(3)

are identical, however, so APS’s mistaken reference does not affect the Court’s analysis. The

Court expects APS to cite to this Court’s Rules in all future filings.

3For the purpose of resolving the pending motion to dismiss, the facts alleged in a plaintiff’s

operative complaint are assumed to be true, and do not constitute factual findings by the Court.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Am. Bankers Ass’n v. United States, 932 F.3d

1375, 1380 (Fed. Cir. 2019).

4 In APS’s complaint, APS asserts the alleged overpayment for Contract 7601 is $113,110.00.

Compl. ¶¶ 4, 6, 8. All of the subsequent filings by both parties, however, describe an alleged

overpayment for Contract 7601 in the amount of $106,457.00. Pl. Mot. at 1; ECF No. 23 at 5, 13;

ECF No. 24 at 2; ECF No. 48 at 5, 13–14. The confusion may be due to an apparent

typographical error in the COFD. Compare ECF No. 1-1, Amended Administrative Contracting

Officer’s Final Decision and Demand for Payment of Debt, at 3 (“I hereby amend my

determination to be that APS was overpaid by . . . $113,110 for [Contract 7601]”), with id. (“APS

was overpaid on [Contract 7601] by the amount of $106,457[.]”). The Court proceeds for the

purposes of this Order with the understanding that the alleged overpayment for Contract 7601

is $106,457.

2

On January 13, 2022, the Court held a telephonic status conference to discuss the

parties’ views regarding how the case should proceed. ECF No. 55. The parties agreed

that the Court should rule first on APS’s motion to dismiss.5

II. LEGAL STANDARD & DISCUSSION

CDA claims are subject to a six-year statute of limitations. 41 U.S.C.

§ 7103(a)(4)(A) (“Each claim by a contractor against the Federal Government relating to

a contract and each claim by the Federal Government against a contractor relating to a

contract shall be submitted within 6 years after the accrual of the claim.”). This statute

of limitations, however, is not jurisdictional. See Sikorsky Aircraft Corp. v. United States,

773 F.3d 1315, 1322 (Fed. Cir. 2014) (concluding that “[41 U.S.C.] § 7103 is not

jurisdictional and need not be addressed before deciding the merits”).6 This Court, of

course, has followed that binding precedent and held that the CDA’s six-year statute of

limitations is an “affirmative defense.” CB & I AREVA MOX Servs., LLC v. United States,

138 Fed. Cl. 292, 302 (2018) (citing Sikorsky, 773 F.3d at 1320–22). For example, a

government timeliness challenge to a contractor’s CDA complaint is typically raised via

a motion to dismiss for failure to state a claim pursuant to RCFC 12(b)(6) or via a

motion for summary judgment. See, e.g., Al-Juthoor Contracting Co. v. United States, 129

Fed. Cl. 599, 610, 621 (2016) (dismissing untimely CDA claims pursuant to

RCFC12(b)(6)); Kansas City Power & Light Co. v. United States, 143 Fed. Cl. 134, 137, 143

(2019) (granting government motion for summary judgment because a CDA claim was

untimely filed).

APS nevertheless argues that the six-year statute of limitations is jurisdictional.

Pl. Mot. at 4-5 (“In this Court, statute of limitations challenges have been raised at the

summary judgment stage and dismissed pursuant to Rule 12(h)(3).”). Because APS

contends that more than six years elapsed between when the government’s claims

accrued and when the government issued the COFD, APS argues that the Court lacks

subject-matter jurisdiction over the government’s claim and should dismiss the case

pursuant to RCFC 12(h)(3). Id.

5APS notes that its decision to file a motion to dismiss was based on a Court recommendation

during a June 15, 2021, telephonic status conference. Pl. Mot. at 5 n.5; see also Pl. Reply at 1 n.1.

6 See also Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519, 526 (D.C. Cir. 2010)

(holding that the CDA’s six-year filing deadline was not grounds to dismiss a claim for lack of

subject-matter jurisdiction); cf. ABB Turbo Sys. AG v. Turbousa, Inc., 774 F.3d 979, 985 (Fed. Cir.

2014) (explaining that dismissal at the pleading stage on statute-of-limitations grounds

ordinarily is improper unless it is “apparent from the face of the complaint that the claim is

time-barred” (quoting La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845–46 (11th Cir. 2004))).

3

To the extent that APS seeks a jurisdictional dismissal of the government’s claim,

the Court denies APS’s motion. See Sikorsky, 773 F.3d at 1322. Although neither party

cites Sikorsky in the briefs, that case applies here, and is controlling.

APS misapplies case law to supports its argument. APS cites Todd v. United

States, 292 F.2d 841, 844 (Ct. Cl. 1961), and Biloxi Marsh Lands Corp. v. United States, 152

Fed. Cl. 254, 268 (2021), for the proposition that the statute of limitations is

jurisdictional.7 Pl. Mot. at 4. Both Todd and Biloxi involved claims subject to the Tucker

Act’s general statute of limitations, see 28 U.S.C. § 2501,8 and not the CDA’s timeliness

provision, see 41 U.S.C. § 7103. Todd, 292 F.2d at 843–44 (applying 28 U.S.C. § 2501 to a

takings claim); Biloxi, 152 Fed. Cl. at 268 (citing 28 U.S.C. § 2501). In contrast to the

CDA’s statute of limitations, the six-year statute of limitations that generally applies to

Tucker Act claims is a strict jurisdictional bar. See 28 U.S.C. § 2501; John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (“This Court has long interpreted the

court of claims limitations statute as setting forth this second, more absolute, kind of

limitations period”); Jones v. United States, 7 F.4th 1376, 1379 (Fed. Cir. 2021) (“To fall

within the jurisdiction of the Court of Federal Claims, a claim against the United States

filed in that court must be ‘filed within six years after such claim first accrues.’”

(quoting 28 U.S.C. § 2501)).

The statute of limitations in 28 U.S.C. § 2501 does not govern CDA cases. See,

e.g., Pathman Constr., Inc. v. United States, 817 F.2d 1573, 1580 (Fed. Cir. 1987) (explaining

that “ [o]nce a contractor elects to proceed under the [Contract] Disputes Act, the six-

year statute of limitations in 28 U.S.C. § 2501 is not applicable”); see also Sikorsky, 773

F.3d at 1321–22 (contrasting 41 U.S.C. § 7103 with 28 U.S.C. § 2501, where the latter

“provid[es] a 6–year statute of limitations for filing claims with the Court of Federal

Claims” and is “jurisdictional”).

APS filed suit pursuant to the CDA, and, thus, the Court agrees with the

government that the timeliness question, at issue here, is more suitable for resolution

via a motion for summary judgment pursuant to RCFC 56. ECF No. 48 (“Def. Resp.”) at

1. Accordingly, to the extent APS seeks a ruling regarding the timeliness of the COFD’s

decision, the Court will address that issue in resolving the parties’ pending cross-

7 APS also cites to Lodge Construction, Inc. v. United States, 153 Fed. Cl. 430, 438 (2021), for the

proposition that the CDA’s statute of limitations is jurisdictional. Pl. Mot. at 5 (characterizing

Lodge as “dismissing under 12(h)(3) on CDA statute of limitations issues when raised in a

motion for summary judgment”)). While APS correctly characterizes Lodge, that decision does

not address Sikorsky, which this Court is bound to follow.

8Pursuant to 28 U.S.C. § 2501, “[e]very claim of which the United States Court of Federal

Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after

such claim first accrues.”

4

motions for summary judgment. Moreover, the government correctly notes that APS

cannot challenge the COFD through a motion to dismiss. Def. Resp. at 1. The CDA

entitles a plaintiff to de novo review of a COFD; generally, the correct avenue through

which to seek such review (i.e., even regarding timeliness) is a complaint and summary

judgment (or perhaps a motion for judgment on the pleadings, see RCFC 12(c)). 41

U.S.C. §7104(b)(1) (providing for a cause of action seeking de novo review of a COFD in

the Court of Federal Claims “in lieu of appealing the decision . . . to an agency board”);

see also, e.g., Diversified Maint. Sys., Inc. v. United States, 110 Fed. Cl. 612, 615 n.2 (2013)

(distinguishing between an appeal to a contract appeals board pursuant to 41 U.S.C.

§ 7105, and a direct action on a claim in the COFC pursuant to 41 U.S.C. § 7104, and

citing Wilner v. United States, 24 F.3d 1397, 1401–02 (Fed. Cir. 1994)).

Although generally “[e]very defense to a claim for relief in any pleading must be

asserted in the responsive pleading . . .[,] a party may assert” certain “defenses” —

including “lack of subject-matter jurisdiction” — “by motion.” RCFC 12(b)(1). The

only claim currently pending before the Court belongs to APS so there is nothing for

APS to move to dismiss. In contrast, in Johnson Lasky Kindelin Architects, Inc. v. United

States, 151 Fed. Cl. 642 (2020), the Court addressed a plaintiff’s motion to dismiss a

government counterclaim for an amount sought in a COFD (i.e., a government claim).

The Court held that the COFD at issue was invalid, dismissing “both the plaintiff's

Complaint and the government’s Counterclaim . . . pursuant to RCFC 12(h)(3).” 151

Fed. Cl. at 668. The posture of this case is not comparable to the Johnson Lasky Kindelin

matter.

III. CONCLUSION

For the reasons discussed above, the Court DENIES APS’s motion to the extent

that the motion seeks a jurisdictional dismissal of the government’s claim. To the extent

APS seeks a ruling on its statute of limitations argument, the issue will be considered in

the course of resolving the parties’ cross-motions for summary judgment.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

5