United States: Unique Aspects Of Practice Before The Boards Of Contract Appeals – No Interlocutory Appeals

UNIQUE ASPECTS OF PRACTICE BEFORE THE BOARDS OF CONTRACT APPEALS – NO INTERLOCUTORY APPEALS

Litigation before the Armed Services and Civilian Boards of Contract Appeals (ASBCA and CBCA, or Boards) involves some unique aspects not found in typical civil cases in federal courts. The differences begin with the ease of filing an appeal with the Boards. Contractors can obtain early discovery with the government's prompt production of the appeal, or "Rule 4," file, which is supposed to – but rarely does – contain all relevant documents. The Boards promote robust, and usually free, alternative dispute resolution (ADR) options. While the Boards generally use quick and effective motion practice, they are reluctant to deny litigants their day in court, so motions for summary judgment by either party are rarely successful. During hearings, the Boards employ the Federal Rules of Evidence as a guide, which means judges often admit disputed evidence but say they will give it "the weight it deserves." Pre-hearing briefs are employed to excellent effect, and the presiding judges are well informed about the issues. Three-judge panels, including the hearing judges, decide the appeals.

We will explore some of these differences in more depth in later posts, but here we examine a single aspect of Board procedure: Interlocutory appeals are not available at the ASBCA.

  1. No interlocutory appeals from Board decisions.

In Public Warehousing Co., K.S.C., ASBCA No. 58088 (Mar. 7, 2017), the Board had previously issued orders staying Public Warehousing's appeal due to the pendency of a criminal case in district court and granting the government leave to amend its answer to assert affirmative defenses. Public Warehousing moved the Board to certify these earlier orders for interlocutory appeal to the Court of Appeals for the Federal Circuit ("Federal Circuit"). The Board found that it lacked authority to certify questions for interlocutory appeal.

The Board relied on (1) the plain language of 28 U.S.C. § 1295(a)(10), which states that the Federal Circuit has exclusive jurisdictions of appeals from "final decisions" of the Boards, and (2) 28 U.S.C. § 1292, which grants the courts of appeal jurisdiction over interlocutory appeals from district courts but which fails to mention the Boards.

The ASBCA has handled this issue even-handedly, refusing both the government's and contractors' requests that it certify questions for interlocutory appeal. The Public Warehousing case involved a request by a contractor. See also Freightliner Corp., ASBCA No. 42982, 94-2 BCA ¶ 26,705 (Board lacks authority under 28 U.S.C. § 1292(b) to certify an interlocutory order for appeal to the Federal Circuit). In General Dynamics Ordnance & Tactical Systems, ASBCA Nos. 56870, 56957, 10-2 BCA ¶ 34,525, the Board denied a government request to certify an interlocutory order for appeal. The government objected to the release of documents concerning the contractor's competitor but, after in camera review, the Board ordered the government to produce the documents under a protective order. The government asked the Board to certify its order for interlocutory appeal and requested a stay during the appeal. The Board held it had no authority to certify an interlocutory order for review at the Court of Appeals for the Federal Circuit, and it also declined to issue the requested stay.

The CBCA has never considered a request for an interlocutory order in a published opinion. The IBCA, now subsumed within the CBCA, has refused to certify orders for interlocutory review. Marshall Associated Contrs., Inc., IBCA 1901, 3433-3435, 98-1 B.C.A. ¶ 29,565, 1998 IBCA LEXIS 3; Scott Timber Co., IBCA 3771-97, 98-1 B.C.A. (CCH) ¶ 29,555, 1998 IBCA LEXIS 2 at 11 n.1 (Feb. 4 1998). One lone board – the Agriculture Board of Contract Appeals (also subsumed within the CBCA) – certified an interlocutory appeal to the Federal Circuit in Shawn Montee, Inc., AGBCA No. 2004-153-R et al., 05-1 BCA ¶ 32,889. But the Federal Circuit then declined to hear Shawn Montee's board-certified interlocutory appeal in an unpublished decision, avoiding any jurisdictional analysis and stating only that the "better course" would be for the AGBCA to fully adjudicate all issues in the case before the court's appellate review.

  1. What does the Federal Circuit say?

The Federal Circuit has often stated that it lacks jurisdiction to hear interlocutory appeals. In a line of cases involving appeals from Board decisions on entitlement issues only, the court emphatically insists that it has jurisdiction to hear only appeals from final decisions of a board. Considering an appeal from a Board decision that resolved entitlement but remanded quantum issues to the parties, the court stated: "We have jurisdiction over this appeal, if at all, under 28 U.S.C. § 1295(a)(10)(1994). That section provides for our appellate review "of an appeal from a final decision of an agency board of contract appeals. . . ." AAA Engineering & Drafting, Inc. v. Widnall, 129 F.3d 602 (Fed. Cir. 1997) (emphasis added). Without mentioning or analyzing 28 U.S.C. § 1292(c)(1), which governs the court's jurisdiction over interlocutory appeals, the court determined that a decision on entitlement only was not a "final decision" because the Board continued to assert jurisdiction should the parties fail to agree on quantum. Thus, the court held, it lacked appellate jurisdiction. See, e.g., Teledyne Continental Motors, General Products Division v. United States, 906 F.2d 1579, 1582 (Fed. Cir. 1990); see also United States v. W.H. Moseley Co., 730 F.2d 1472, 1474 (Fed. Cir. 1984) (dismissing appeal from the ASBCA's order directing the contracting officer to issue a decision, the court said, "[I]t is well established that this court, as an appellate tribunal, may review only 'final decisions'.").

In an anomalous 1986 decision, the Federal Circuit expressly held it had jurisdiction under 28 U.S.C. § 1292(c)(1) from an interlocutory order of the GSBCA under the Brooks Act. Electronic Data Systems Federal Corp. v. General Services Admin. Bd. of Contract Appeals, 792 F.2d 1569, 1575 (Fed. Cir. 1986) ("EDS Federal"). The court closely examined the language of 28 U.S.C. § 1292(c)(1) granting it jurisdiction "of 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." (Emphasis added.) Subsections (a) and (b) cover, inter alia, orders by district courts involving injunctions and interlocutory orders by district courts certified to involve controlling issues of law.

The issue, the court stated, is whether the phrase "described in subsection (a) or (b) of this section" means the nature of orders described in subsections (a) and (b) – specifically, in EDS Federal, orders involving injunctions – or orders that, in addition to being the right type of order, were issued by a district court. Based primarily on one statement in the legislative history of the Federal Courts Improvement Act of 1982 that the Act would "give the Court of Appeals for the Federal Circuit jurisdiction of interlocutory appeals in cases that will otherwise come to it on appeal," the court held that the "described in subsection (a) or (b)" language applied only to the type of order. Thus, the court reasoned it had jurisdiction over appeals from the GSBCA's injunction-related orders in cases that would otherwise come to it on appeal.

The narrow ruling in EDS Federal, which involved an injunction issued by the GSBCA, was that "Injunctive orders from any tribunal within our exclusive appellate jurisdiction fall within the jurisdiction granted to this court by § 1292(c)(1)" (emphasis added). In the Public Warehousing decision, the ASBCA distinguished EDS Federal because it dealt specifically with injunctions, arose under the Brooks Act, and reached the Federal Circuit through a bizarre route involving a federal district court. The Board found that the W.H. Moseley case still controlled with respect to interlocutory Board orders. Thus, the issue seems to be dead at the ASBCA and, most likely, the CBCA as well.

  1. What does this mean for contractors?

The absence of a mechanism for interlocutory review obviously has pros and cons in appeals before the Boards. It removes one source of complexity, making litigation more linear and – perhaps – cheaper and faster, but it deprives any party that must comply with a non-appealable interlocutory order of an important strategic option that conceivably could shorten or simplify the appeal.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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