United States of America, Plaintiff-appellee, v. Kasler Electric Company, Inc., Defendant-appellant,fireman's Fund Insurance Companies, Defendant, 123 F.3d 341 (6th Cir. 1997)

Defendant-Appellant Kasler Electric Co. ("Kasler") appeals the district court's order granting summary judgment in favor of Plaintiff-Appellee United States in this action to enforce the final decision of a government contracting officer.¹  Kasler contends that the decision was not a valid "final decision" within the meaning of the Contract Disputes Act of 1978(CDA), Pub. L. No. 95-563, 92 Stat. 2383; in the alternative, Kasler argues that the government should be estopped from asserting that Kasler did not seek review of the decision as provided in the CDA.

The facts underlying the contract dispute itself may be succinctly stated. In brief, the Veterans Administration contracted with Kasler for installation of a fire alarm system in a V.A. hospital in Michigan in 1982. After various disputes involving performance of the contract, the government contracting officer issued a decision terminating the contract for default; Kasler received notice of the decision on May 4, 1987. The government later contracted with another company to complete installation of the fire alarm system.

On May 4, 1988, Kasler filed suit in the United States Claims Court²  challenging the 1987 decision and seeking $322,198.77, including $127,961.08 remaining on the contract and $194,237.69 for "extra work performed not in our contract." Joint Appendix (J.A.) at 68; see also J.A. at 127. During the pendency of the litigation, the contracting officer issued another decision on November 5, 1990, determining the costs of excess reprocurement (the difference between the amount Kasler owed on the unfinished contract and the amount of the second contract with another company to complete the job) and ordering Kasler to pay those costs, which totaled $131,111.88. J.A. at 53. On November 21, 1990, the United States filed a counterclaim seeking to enforce the decision regarding reprocurement. Although Kasler asserted defenses against that counterclaim, it did not seek review of the decision by the Veterans Administration Board of Contract Appeals (VABCA) or file a separate suit in the Claims Court. Appellant's Br. at 9.

On April 30, 1992, the Claims Court dismissed Kasler's claim without prejudice, for lack of subject matter jurisdiction, since the plaintiff had not submitted a CDA "claim" to the contracting officer, as was required for jurisdictional purposes. Kasler Elec. Co. v. United States, No. 267-88C (Cl.Ct. April 30, 1992); J.A. at 66. Because the Claims Court did not have subject matter jurisdiction over the plaintiff's claims, the government's counterclaim was necessarily dismissed for lack of jurisdiction. Kasler, No. 267-88C, slip op. at 9 n.9; J.A. at 74. See Mulholland v. United States, 175 Ct. Cl. 832, 361 F.2d 237, 245 (1966):

[A]s the Court of Claims is generally without authority to adjudicate claims by the United States against other persons, it has been held that where the United States has asserted in this court a counterclaim against a plaintiff and the plaintiff's claim is rejected because of a lack of jurisdiction, the counterclaim must be dismissed along with the plaintiff's petition, without regard to the merits of the counterclaim.

See also Somali Dev. Bank v. United States, 205 Ct. Cl. 741, 508 F.2d 817, 822 (1974).

In the Claims Court litigation, Kasler and the government stipulated to the existence of the November 5, 1990 decision of the contracting officer and the notification of Kasler. See J.A. at 59 (Joint Mem. Re: Stipulations at p 18). Although the government incorrectly contends that the previous stipulation "conclusively establishe [s]" notice, Appellee's Br. at 9, the record and various motions and briefs in this litigation indicate that Kasler challenges the validity of the decision on other grounds and does not appear to challenge the decision's existence and Kasler's notice thereof. See generally Appellant's Br.; J.A. at 156-68.

On August 25, 1992, the contracting officer, for reasons that are not clear (and that even the contracting officer claimed not to know³ ), sent another copy of the November 5, 1990 decision to Kasler. The government presented an affidavit from the contracting officer stating that she had placed a copy of the decision, properly addressed, in the mail to Kasler's president, its attorney, and the bond surety. J.A. at 43-44. Kasler presented affidavits from its president, its counsel, and its codefendant's counsel stating that they never received a copy dated August 1992, and that they had received no claim for payment from the government since before April 30, 1992 (i.e., they had received no claim for payment after the end of the period during which they contend the contracting officer lacked authority to issue a decision). J.A. at 169, 171, 178.

The United States filed this action in the district court on August 17, 1994, seeking a judgment to enforce the 1990 decision. The district court granted summary judgment in favor of the United States, holding that the final decision was "valid, final and unreviewable under [41 U.S.C.] § 609." J.A. at 380.

This court reviews a grant of summary judgment de novo. Shahid v. Ford Motor Co., 76 F.3d 1404, 1408 (6th Cir. 1996). Summary judgment is appropriate if there is no genuine dispute as to a material fact and if the movant is entitled to a judgment as a matter of law. Id.

The government sought a judgment to enforce the contracting officer's 1990 decision for purposes of collecting the reprocurement costs. The CDA divests the federal district courts of jurisdiction over contractors' disputes with the government. S.REP. NO. 95-1118, at 33 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5267; McDonnell Douglas Corp. v. United States, 754 F.2d 365, 370 (Fed. Cir. 1985).⁴  A contractor who contests a contracting officer's decision has a choice between only two exclusive remedies: it may appeal the decision to an agency board of contract appeals (BCA) within ninety days from the date of receipt of the decision, or it may "bring an action directly on the claim in the United States Court of Federal Claims ..." within twelve months from the date of receipt. 41 U.S.C. §§ 606, 609(a), (c); Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1562 (Fed. Cir. 1990), cert. denied, 499 U.S. 919, 111 S. Ct. 1308, 113 L. Ed. 2d 243 (1991). Under the CDA, a contracting officer's decision becomes "final and conclusive and not subject to review by any forum, tribunal, or Government agency" if the contractor does not timely pursue one of those remedies. 41 U.S.C. § 605(b); see also FAR 52.233-1(f) (48 C.F.R. § 52.233-1(f))⁵  (including a disputes clause in all government contracts that makes the contracts subject to the CDA and provides that " [t]he Contracting Officer's decision [on a claim] shall be final unless the Contractor appeals or files a suit as provided in the Act.").

Though the merits of the contracting officer's decision itself were not within the jurisdiction of the district court, the government merely sought summary enforcement of an order that it contends is final and unreviewable. See Seaboard Lumber, 903 F.2d at 1562 & n. 4 ("The government may obtain a judgment on the basis of such decision in a state or federal court without litigating the merits."); see also United States v. Suntip Co., 82 F.3d 1468, 1474 (9th Cir. 1996) (" [T]he contracting officers' decisions are now [final and unreviewable].... For most practical purposes, then, the government's present suit is similar to a suit on a judgment, because the merits of the officers' decisions are not subject to attack."), cert. denied, --- U.S. ----, 117 S. Ct. 942, 136 L. Ed. 2d 832 (1997); United States v. Roarda, Inc., 671 F. Supp. 1084 (D. Md. 1987) (granting the government's motion for summary judgment to enforce a final decision against a contractor). Nothing in the statute, however, appears to prevent the district court, and this court on appeal, from evaluating the finality and unreviewability of the decision itself as a matter of law. Clearly, the United States could not bring suit on the decision in the Court of Federal Claims, which, with the Federal Circuit (to which appeals from the Court of Federal Claims are pursued), is the source of most of the applicable precedent in this area. See, e.g., Mulholland, 361 F.2d at 245 (" [T]he Court of Claims is generally without authority to adjudicate claims by the United States against other persons....").⁶  Therefore, only a district court would have the opportunity to assess the finality and unreviewability of an order if the issue first arose in a government-instituted action to enforce the order.

Furthermore, the Ninth Circuit's analogy to a suit on a judgment is apt. A court asked to enforce a money judgment rendered by a court in another jurisdiction generally cannot reconsider the merits of the prior decision; the court can, however, consider such matters as notice to the defendant and the finality of the judgment. See generally RESTATEMENT (SECOND) OF CONFL. OF LAWS §§ 100, 104, 106, 107 (1971). Similarly, a court deciding whether to enforce a final decision of a contracting officer must be able to consider issues not related to the merits, such as notification of the contractor and the contractor's failure to appeal.

Although the government protests in its brief that Kasler is seeking to obtain fact-finding jurisdiction in the district court, and contends that the divestment of such jurisdiction by the CDA bars the district court from finding a genuine dispute as to a material fact, the only issues raised in this appeal involve the validity and finality of the order itself, rather than the facts underlying the merits. Certainly, the district court could not evaluate disputes as to the merits of the contract dispute itself, such as the legitimacy of the government's reasons for terminating the contract, or the reasonableness of the reprocurement costs incurred. Nevertheless, the CDA's divestment of federal court jurisdiction over government contract disputes does not mean that a federal court must rubber-stamp a final decision without being able to assess the finality and unreviewability of that decision--i.e., the threshold question of the applicability of § 605(b). See, e.g., United States v. Dabbs, 608 F. Supp. 507 (S.D. Miss. 1985) (considering only whether the contractor received notice of the final decision); Roarda, Inc., 671 F. Supp. at 1086 (noting that the contractor had not appealed the decision to the Board of Contract Appeals or to the Claims Court, so the decision had become final and unreviewable); United States Postal Service v. Temple University, No. CIV.A. 93-3378, 1994 WL 29592 (E.D. Pa. Jan. 28, 1994) (considering whether the contractor received a copy of the final decision; granting summary judgment in favor of the government because the contractor had failed to appeal the decision pursuant to the CDA). For these reasons, we hold that a federal district court, and this court on appeal, can decide whether a decision of a government contracting officer is final and unreviewable under 41 U.S.C. § 605(b); we cannot, however, consider the merits underlying that decision.

A. The Authority of the Contracting Officer to Issue the

Decision in November 1990

Kasler contends that the final decision was void when issued in 1990 because the pending litigation in the Claims Court divested the contracting officer of authority to issue a final decision on the matter. Kasler bases its argument on Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993).⁷  Sharman held that once a claim was the subject of litigation, the Justice Department had exclusive authority over the matter and the contracting officer was divested of authority to issue a final decision on that claim; any final decision on the claim issued during the litigation was "without authority and consequently ... a nullity." 2 F.3d at 1571-72. Relying on Sharman, Kasler argues that when it brought suit in the Claims Court challenging the 1987 decision terminating the contract for default, the contracting officer was divested of authority to issue the decision on reprocurement costs; therefore, Kasler contends that no decision rendered during the pendency of the litigation (between May 4, 1988 and April 30, 1992) was valid.

Under the Ninth Circuit's analogy to a suit to enforce a judgment, see Suntip Co., 82 F.3d at 1474, the authority of the contracting officer to issue the final decision which the government now asks this court to enforce arguably is analogous to the subject matter jurisdiction of the rendering court, which the second, enforcing court might consider. See, e.g., RESTATEMENT (SECOND) OF JUDGMENTS § 1 (1982) ("Requisites of a Valid Judgment" are subject matter jurisdiction in the rendering court, adequate notice to the party against whom judgment is to be rendered, and territorial jurisdiction, unless the party has submitted to the court's jurisdiction); id. § 81 (1982) (defining "Invalid Judgment"); RESTATEMENT (SECOND) OF CONFL. OF LAWS § 92 (1971) ("Requisites of a Valid Judgment"). But see Karen Nelson Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534 (1981) (suggesting that "subject matter jurisdiction generally should be treated like most other issues for res judicata purposes").

The analogy, however, is undermined by the CDA's specific statutory limitation on the contractor's avenues for seeking review. The provisions of the CDA allowing a contractor to dispute the government's claims regarding a contract are specific, unambiguous, and exclusive; the statute clearly states that a contractor may seek review of a final decision only in a board of contract appeals or in the Court of Federal Claims. 41 U.S.C. §§ 605(b), 606, 609(a). Absent commencement of such review within the prescribed period of time, the decision becomes impervious to any substantive review. 41 U.S.C. § 605(b).

The CDA is intended to keep government contract disputes out of district courts; it limits review of the merits of government contract disputes to certain forums, both to limit the waiver of sovereign immunity and to submit government contract issues to forums that have specialized knowledge and experience. See, e.g., Seaboard Lumber, 903 F.2d at 1566-67 (" [T]he complaints in this appeal are pursuant to a structural system set up by the CDA, which is dependent on waiver of sovereign immunity.... It is not disputed that the government may condition its consent to suit upon a plaintiff suing only in an Article I court...."); Bank of Am. Nat'l Trust and Sav. Ass'n v. United States, 23 F.3d 380, 387 (Fed. Cir. 1994) ("Under the CDA, the government waived its right to assert sovereign immunity against ... contractual claims in return for the contractor's waiver of his right to an Article III trial of government claims against him."); Ingersoll-Rand Co. v. United States, 780 F.2d 74, 78 (D.C. Cir. 1985) (" [Government contract issues] are within the unique expertise of the Court of Claims.... This complaint ... calls for knowledge of the government contracting process. In these circumstances, we must implement the congressional intent to provide a single, uniquely qualified forum for the resolution of contractual disputes.") (footnote omitted); Quality Tooling, Inc. v. United States, 47 F.3d 1569, 1580 (Fed. Cir. 1995) (referring to "the interest expressed in the CDA in resolving government contract claims in familiar, and expert, fora"); see also SMS Data Prods. Group, Inc. v. United States, 900 F.2d 1553, 1555 (Fed. Cir. 1990) (recognizing an agency BCA's "expertise in interpreting [government] contract regulations"). Holding that district courts may engage in inquiries as to the authority of a contracting officer at any given time would unnecessarily and unjustifiably mire district courts in precisely the kind of substantive review of government contract matters that the Act seeks to limit to a special statutory scheme.

Because the language of 41 U.S.C. § 605(b) clearly imparts finality and unreviewability on a contracting officer's decision that is not properly appealed, and makes no mention of the contracting officer's authority to issue the decision, we hold that challenges to the existence of that authority, like the merits of the dispute, can only be pursued through the statutorily provided means. The district court, and this court on appeal, may inquire only as to the finality and unreviewability of the decision that was issued--i.e., whether the contractor received notice of a final decision, and whether it timely commenced an appeal or suit in one of the provided forums.

B. Defense Against the United States' Counterclaim in the

Previous Litigation as a Substitute for a Direct Suit

Kasler contends that the 1990 decision is not final and unreviewable because Kasler did challenge it, in effect, within the applicable time period. According to Kasler, the government's introduction of the reprocurement issue into the Claims Court litigation as a counterclaim effectively substituted for a challenge by Kasler to the 1990 decision under the CDA. Kasler argues that the government should be estopped from asserting that Kasler did not challenge the 1990 decision for purposes of 41 U.S.C. § 605(b) because "the Government itself put the matter into litigation for Kasler" by raising the counterclaim in the Claims Court. Appellant's Br. at 27-28. The district court dismissed this argument with little discussion, noting that Kasler had cited no authority for its interpretation of 41 U.S.C. § 609. We agree with the district court's disposition. Kasler cited no authority to support its argument because there is none; indeed, its argument is unsupportable.

Section 605(b) provides that a decision becomes final and unreviewable "unless an appeal or suit is timely commenced as authorized by this chapter." The statute then "authorizes" only two exclusive options. "Within ninety days from the date of receipt of a contracting officer's decision under section 605 of this title, the contractor may appeal such decision to an agency board of contract appeals...." 41 U.S.C. § 606. " [I]n lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims...." 41 U.S.C. § 609(a) (1) (emphasis added).⁸  "Any action under paragraph (1) ... shall be filed within twelve months from the date of the receipt by the contractor of the decision of the contracting officer concerning the claim...." 41 U.S.C. § 609(a) (3). See also S.REP. NO. 95-1118, at 1-3, 11-12, 29 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5235-37, 5245-46, 5263.

The meaning of § 609(a) is clear: a contractor may challenge a decision by suing "directly" in the Court of Federal Claims with regard to that claim. Though Kasler asks this court to read § 609(a) as allowing a defense to a counterclaim to suffice as a direct suit, such an interpretation defies the plain meaning of the statutory language. In this case, the counterclaim was not on the same claim that had originated the suit⁹ ; Kasler's attempt to link the two using the Federal Rules of Civil Procedure, citing the liberal joinder policy aimed at eliminating multiple litigation, does not transform the defense to a counterclaim into an original complaint.¹⁰ 

We note that the Federal Rules of Civil Procedure do not apply to the Court of Federal Claims, which has established its own rules, found in Title 28 of the United States Code. The Rules of the Court of Federal Claims are based on the Federal Rules of Civil Procedure, with some adaptations to reflect the court's unique jurisdictional constraints. See R. CT. Fed. Cl. 1(b); JOHN CIBINIC, JR. & RALPH C. NASH, JR., ADMINISTRATION OF GOVERNMENT CONTRACTS 1314 (3d ed.1995). The language of Rule of the Court of Federal Claims 13 closely tracks the language of Federal Rule of Civil Procedure 13, concerning counterclaims; nevertheless, given the uniqueness of the Court of Federal Claims, and especially of the specific procedures codified by the CDA,¹¹  we doubt the wisdom of applying the broad policies underlying the Federal Rules to this case, as Kasler urges. Kasler contends that the government's introduction of the issue of excess reprocurement costs into litigation in the Claims Court, in the form of a counterclaim, is the functional equivalent of Kasler having brought in the issue itself. Kasler, in essence, asks this court to hold that the broad aims of the Federal Rules of Civil Procedure, facilitating the management and, where possible, consolidation of ordinary civil litigation, trump the specific intentions of Congress in establishing a detailed statutory scheme for handling a highly specialized class of disputes. Given the policies and procedures of the Contract Disputes Act, we decline to issue such a sweeping holding.

The CDA gives the contractor the choice between the two available forums for review; "the result [is] that the Government has no right to determine the forum in which its claims will be litigated." CIBINIC & NASH, supra, at 1304. By choosing to challenge a contracting officer's decision in one forum, the contractor is precluded from seeking review in the other. See National Neighbors, Inc. v. United States, 839 F.2d 1539, 1541-43 (Fed. Cir. 1988) (discussing the Election Doctrine, which holds that the contractor's choice of a forum that has jurisdiction is a binding election); CIBINIC & NASH, supra, at 1306 (same). See also Bonneville Assocs. v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994) ("Courts have consistently interpreted the CDA as providing the contractor with an either-or choice of forum.").

Therefore, the selection of the forum is a particularly significant strategic choice that the CDA leaves to the contractor:

Numerous consequences can result from the contractor's election of a forum, including the degree of formality of the proceedings, availability of accelerated procedures, possibility of recovery of Equal Access to Justice Act attorneys' fees, scope of review by the Court of Appeals for the Federal Circuit, and presence or absence of precedent or recent decisions on similar issues. Thus, the selection of a forum is an important decision.

CIBINIC & NASH, supra, at 1305-06. See also Bonneville Assocs., 43 F.3d at 653 ("The contractor's choice of forum is an important strategic decision, given the fundamental differences between the two forums [a BCA and the Court of Federal Claims]."); Dorn C. McGrath III, The Transfer and Consolidation Provision of the Contract Disputes Act, 15 PUB. CONT. L.J. 256, 275-76 (1985) (listing some such differences). Congress specifically established the dual system to permit contractors to weigh their own needs in making that decision:

Justice and efficient operation of the contract disputes-resolving system can be obtained best with a flexible system that provides alternative forums for resolution of particular kinds of disputes. The claimant should be able to choose a forum according to the needs of his particular case; that is, one where the degree of due process desired can be balanced by the time and expense considered appropriate for the case. To this end, alternate forums, each with special characteristics, should be maintained for initial resolution of disputes above the contracting officer and informal agency review level.

S.REP. NO. 95-1118, at 13, reprinted in 1978 U.S.C.C.A.N. 5247.

To hold that defending against a government counterclaim is the functional equivalent of bringing a direct suit in the Court of Federal Claims would be to rob contractors of that strategic choice--if the government raised a counterclaim based on a contracting officer's decision and the contractor defended against it, the contractor would lose the option of seeking review in a BCA pursuant to 41 U.S.C. § 606.¹²  The government would have the power to limit the contractor to the Court of Federal Claims merely by asserting a counterclaim.

Kasler neither sought review of the 1990 decision in the Veterans Administration BCA within ninety days nor brought an action directly on the claim in the Claims Court within twelve months. We hold that because Kasler failed to challenge the decision in accordance with the procedures authorized under the CDA, the decision became final and its merits cannot be reviewed by this or any other court or tribunal.

C. The Alleged Dispute Regarding Kasler's Notice of the

Final Decision

Kasler contends that summary judgment was inappropriate because it offered evidence establishing a genuine dispute of material fact as to the notification of Kasler. Kasler presented three affidavits, from its president, its counsel, and an employee of its codefendant, Fireman's Fund, asserting that they had not received the copy of the 1990 decision that the contracting officer claimed to have re-sent on August 25, 1992. J.A. at 169, 171, 178. Nevertheless, Kasler did not establish a genuine dispute as to a material fact.

Kasler correctly argues that the government's discussion of presumptions and its attempts to cast doubt on the credibility of Kasler's affiants were insufficient to overcome the specific claims in the affidavits at summary judgment; at most, the government's arguments merely demonstrated that a dispute existed. Kasler is also correct that the CDA requires that the contracting officer "mail or otherwise furnish" a copy of the decision to the contractor, 41 U.S.C. § 605(a), and that the CDA hinges the limitations periods for appealing a decision to an agency BCA and for suing in the Court of Federal Claims on the date of the contractor's receipt of the decision. 41 U.S.C. §§ 606, 609(a). Notification, therefore, could be a material fact preventing a district court from granting the government summary judgment on a final decision.

Kasler must lose this point, however, because the second copy of the decision was superfluous. The district court correctly held that " [w]hile the Court is not sure why the contracting officer found it necessary to issue copies of the November 1990 decision in August 1992, the Court need not address whether these copies constituted a properly noticed final decision." J.A. at 380. Because Kasler did not challenge the validity of the November 1990 decision through the appropriate channels within the period of time prescribed by statute, the government need not have sent another copy at all; the August 1992 copy was utterly gratuitous, and its receipt immaterial to the district court's analysis of the finality and unreviewability of the 1990 decision. Though this court has no way of knowing whether the government thought the renewed sending was necessary, even such a belief on the government's part would have no impact on the court's determination. Kasler's apparent desire to characterize the 1992 copy as a re-finalization of the decision, or as evidence that the government recognized the invalidity of the 1990 decision, is without support in fact or law.

If Kasler had alleged, with supporting evidence, that it never received a copy of the November 1990 decision, a genuine dispute as to a material fact would have existed and summary judgment would have been precluded. Kasler, however, did not contend that it had not received the 1990 decision, and presented no evidence to indicate that it had not. In fact, the affidavit from the codefendant's employee stated that the codefendant received a copy of the decision on November 12, 1990, and faxed it to Kasler's counsel on November 13. J.A. at 179 (Gardocky Aff. at p 7). In addition, Kasler necessarily received notice of the decision when the United States raised a counterclaim based on that decision in the Claims Court litigation. Moreover, Kasler actually stipulated to the issuance of the 1990 decision in that litigation. J.A. at 59 (Joint Mem. re: Stipulations at p 18). The government argues that the stipulation is "conclusive [ ]"; though we disagree, given that the Claims Court suit granted a motion to dismiss for lack of jurisdiction and therefore did not actually decide any fact,¹³  the stipulation is probative, particularly since Kasler does not appear to contest notification as to the original 1990 decision. Based on these facts, and absent evidence that Kasler did not receive a copy of the decision when it was first issued, no material fact was in dispute and the district court correctly granted summary judgment in favor of the United States.

For the reasons discussed above, we AFFIRM the order of the district court granting summary judgment to the plaintiff.