Combat Support Associates ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Combat Support Associates ) ASBCA Nos. 58945, 58946
)
Under Contract No. DASA02-99-C-1234 )
APPEARANCES FOR THE APPELLANT: Karen L. Manos, Esq.
Owen E. Whitehurst, Esq.
Gibson, Dunn & Crutcher LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Douglas R. Jacobson, Esq.
Trial Attorney
Defense Contract Management Agency
Bloomington, MN
David C. Hoffman, Esq.
Deputy General Counsel
Defense Contract Audit Agency
Fort Belvoir, VA
OPINION BY JUDGE MCILMAIL
ON APPELLANT'S MOTION FOR RECONSIDERATION
On 31 October 2014, appellant, Combat Support Associates, timely moved that
the Board reconsider its 22 October 2014 decision denying appellant's motion to
dismiss for lack of jurisdiction these appeals from government claims. Appellant had
contended that the government's claims are barred by the six-year statute of limitations
set forth in the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4). Combat
Support Associates, ASBCA Nos. 58945, 58946, 14-1 BCA ii 35,782. Upon
reconsideration, the Board vacates its 22 October 2014 decision and denies the motion
to dismiss for lack of jurisdiction.
On 10 December 2014, the United States Court of Appeals for the Federal
Circuit issued its opinion in Sikorsky Aircraft Co. v. United States, 773 F.3d 1315(Fed. Cir. 2014). Pursuant to that opinion, which is binding upon the Board, the court
overruled its line of cases holding that the six-year statute of limitations contained in
the CDA was jurisdictional, and held that the CDA' s six-year statute of limitations is
not jurisdictional; therefore, the six-year statute of limitations in the CDA provides no
basis to dismiss an appeal for lack of jurisdiction. See id. at 1320-22.
We decline appellant's suggestion in its motion to treat its motion to dismiss for
lack of jurisdiction as a motion for summary judgment. See Aries Marine Corp.,
ASBCA No. 37826, 90-1 BCA ~ 22,484 at 112,846-47. At this juncture of the
appeals, we consider the better approach is to leave it to each party to determine
whether to pursue summary judgment separate from these jurisdictional proceedings.
Cf Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA ~ 35,234 at 172,994 (denying
motion to dismiss for lack of jurisdiction and deferring merits ruling "to an appropriate
merits proceeding, whether it be a motion for summary judgment or after a hearing").
Upon reconsideration, the Board's 22 October 2014 decision is vacated, and the
motion to dismiss for lack of jurisdiction is denied. 1
Dated: 16 March 2015
Administrati e Judge
Armed Serv· es Board
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
1
Appellant's motion contained a request that the Chairman refer the motion to the
Board's Senior Deciding Group pursuant to paragraph 4 of the Board's Charter.
The Chairman has denied that request.
2
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. 58945, 58946, Appeals of
Combat Support Associates, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
3