Sheridan Transportation v. Gsa , 651 F. App'x 987 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERIDAN TRANSPORTATION SYSTEMS, INC.,
Appellant
v.
GENERAL SERVICES ADMINISTRATION, ERIC K.
FANNING, SECRETARY OF THE ARMY,
Appellees
______________________
2015-1858
______________________
Appeal from the Civilian Board of Contract Appeals in
No. 4071-RATE, Administrative Judge Stephen M. Dan-
iels.
______________________
Decided: June 9, 2016
______________________
EARL E. CLOUD, Huntsville, AL, argued for appellant.
Also represented by JOHN ELGIN MCCULLEY, John E.
McCulley, P.C., Tuscaloosa, AL.
MARK E. PORADA, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellees. Also represented by
DEBORAH A. BYNUM, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
2 SHERIDAN TRANSPORTATION v. GSA
______________________
Before DYK, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
This case involves a contract dispute between the gov-
ernment and Sheridan Transportation Systems, Inc., a
private trucking company the government hired to
transport emergency supplies to potential hurricane
areas. As relevant here, Sheridan delivered supplies to
the government in two trailers in September 2008. Not
until July 6, 2012, however, did the government notify
Sheridan that the trailers were available to be picked up.
In May 2013, Sheridan submitted invoices for payment
for that entire period based on the daily rate specified in a
contract provision addressing “detention” for a period
needed for the government to unload the trailers. Sheri-
dan and the government have consistently treated the
claims as filed under a provision of the Transportation
Act, 31 U.S.C. § 3726. The government—both the agency
contracting officer and a dispute-resolutions officer of the
General Services Administration—rejected Sheridan’s
claims as untimely under § 3726(c)(2), which required this
claim to be received by the government no more than 3
years after the claim accrued.
Sheridan appealed to the Civilian Board of Contract
Appeals pursuant to 31 U.S.C. § 3726(i)(1) and a regulato-
ry delegation to the Board by the Administrator of Gen-
eral Services, 41 C.F.R. § 102-118.490(a). See 31 U.S.C.
§ 3726(g) (authorizing such delegation). Before the Board,
Sheridan presented no claim except the claim for payment
of the contract “detention” rate, and Sheridan did not
dispute that the claim was a Transportation Act claim
subject to 31 U.S.C. § 3726. The Board held the claim to
be untimely. J.A. 1–8.
Sheridan appealed to this court, invoking our jurisdic-
tion under 28 U.S.C. § 1295(a)(10) to hear “an appeal from
SHERIDAN TRANSPORTATION v. GSA 3
a final decision of an agency board of contract appeals
pursuant to” 41 U.S.C. § 7107(a)(1), a provision of the
Contract Disputes Act. The government did not contest
this court’s jurisdiction until after briefing and argument.
It has now done so. We agree that we lack jurisdiction.
Under an earlier codification of the Contract Disputes
Act, we held that not all Board decisions, but only Board
decisions on contract claims covered by the Contract
Disputes Act, are within (what is now) section 7107(a)(1)’s
reference to a “decision of an agency board.” See G.E.
Boggs & Assocs. v. Roskens, 969 F.2d 1023, 1026 (Fed.
Cir. 1992); see also Roberta B. v. Tenet, 71 F. App’x 45, 46
(Fed. Cir. 2003); Corrigan v. Dollar, 89 F. App’x 238, 239
(Fed. Cir. 2003). At the same time, in Inter-Coastal
Xpress, Inc. v. United States, 296 F.3d 1357, 1366–70
(Fed. Cir. 2002), we held that a claim for a payment
specified in a transportation contract with the govern-
ment like the one at issue here is covered by the Trans-
portation Act and not by the Contract Disputes Act. See
also id. at 1366 (“Congress intended to have the [Trans-
portation Act] govern all actions seeking the payment of
money for the charges owed on contracts for transporta-
tion services between common carriers and the govern-
ment.”). Those principles together mean that the Board’s
decision on the current claim for payment under the
transportation contract at issue is not a decision within
41 U.S.C. § 7107(a)(1) subject to appeal to this court
under 28 U.S.C. § 1295(a)(10).
A claim for a contract-specified payment under a
transportation contract like this one can be pursued
directly in court, subject to timeliness and other condi-
tions. Thus, separately from permitting a claim for
agency relief in 31 U.S.C. § 3726, the Transportation Act
provides for a “civil action to recover charges” in a trans-
portation contract, 49 U.S.C. § 14705(a), including against
the federal government, § 14705(f). That action is not for
review of the agency decision, but a direct action for
4 SHERIDAN TRANSPORTATION v. GSA
judicial relief. InterCoastal Xpress, after separately and
unsuccessfully pursuing agency relief, filed such an action
in the Court of Federal Claims, 296 F.3d at 1361–62—
though it encountered a timeliness problem as to many of
its claims, because the judicial remedy carries a three-
year limitations period of its own, id. at 1366–67; see 49
U.S.C. § 14705(f). Sheridan, in contrast, did not file such
an action.
Nor did Sheridan present to the board in this case a
claim for general contract damages for breach of a gov-
ernment obligation to return the trailers. Whatever the
reason—simplicity; the magnitude of the amount pro-
duced by multiplying the contract-specified daily rate by
the three-plus years of government retention of the trail-
ers; a much lower estimate of likely damages from breach
in the circumstances—Sheridan presented only a claim
for payment of contract-specified “detention” charges.
That claim comes squarely within 31 U.S.C. § 3726 and
Inter-Coastal and therefore is outside the Contract Dis-
putes Act.
After Inter-Coastal was decided, the Contract Dis-
putes Act was recodified and amended, but we see no
basis in those changes for reaching a different result.
Effective January 2007, Congress created the Civilian
Board of Contract Appeals to consolidate some agency-
specific boards, allowing the new board to be assigned
functions that had been assigned to the predecessor
boards. See 41 U.S.C. § 438 (in effect from January 2007
to January 2011); Pub. L. No. 109-163, § 847, 119 Stat.
3136, 3391–95 (2006); H.R. Rep. No. 109-360, at 762
(2005) (Conf. Rep.). Then, in 2011, Congress recodified
the Contract Disputes Act, with the foregoing provision
now appearing at 41 U.S.C. § 7105(b). Public Contracts
Act of Jan. 4, 2011, Pub. L. No. 111-350, § 3, 124 Stat.
3677, 3821 (2011). Congress expressly declared its intent
to restate, not significantly alter, existing law. Id. § 2(b),
SHERIDAN TRANSPORTATION v. GSA 5
124 Stat. at 3677 (“In the codification of laws by this Act,
the intent is to conform to the understood policy, intent,
and purpose of Congress in the original enactments, with
such amendments and corrections as will remove ambigu-
ities, contradictions, and other imperfections . . . .”); see
H.R. Rep. 111-42, at 2 (2009) (same).
It was before those congressional actions that we had
held our 28 U.S.C. § 1295(a)(10) jurisdiction limited to
agency board decisions made on Contract Disputes Act
claims and, in Inter-Coastal, recognized the parallel
availability of the agency and judicial remedies for claims
seeking payment under transportation contracts and held
that the Transportation Act governs such claims to the
exclusion of the Contract Disputes Act. We discern no
alteration either of the Inter-Coastal holding that a claim
like Sheridan’s is outside the Contract Disputes Act, and
covered only by the Transportation Act, or of the limita-
tion of our appellate jurisdiction to those Board “deci-
sions” which rule on claims covered by the Contract
Disputes Act itself, excluding other decisions the Board
may be assigned to make. For those reasons, we conclude
that we lack jurisdiction over this appeal under the exist-
ing statutory regime and our precedent.
We also conclude that, unlike G.E. Boggs, this is not
an appropriate case to transfer to the Court of Federal
Claims. For such a transfer to be justified, not only would
the Court of Federal Claims have to possess jurisdiction
over the matter, but transfer would have to be in the
interest of justice. 28 U.S.C. § 1631. Here, however,
Sheridan has a timeliness problem even under its broad
view of “detention” as covering the government’s holding
of the trailers until it gave Sheridan notice of their avail-
ability to be picked up.
That notice came in early July 2012, and both trailers
were retrieved by July 13, 2012. J.A. 6. Under the stat-
ute governing transportation claims in the Court of Fed-
6 SHERIDAN TRANSPORTATION v. GSA
eral Claims, Sheridan’s claim accrued “on delivery or
tender of delivery by the carrier,” 49 U.S.C. § 14705(g),
and Sheridan has asserted that its claim accrued by the
time it picked up the trailers (by July 13, 2012), Appel-
lant’s Br. at 15, 19, 20, 21–22. Sheridan initiated the
present judicial proceeding by filing a petition for review
on July 15, 2015. ECF No. 1. That is past the three years
after accrual allowed by 49 U.S.C. § 14705(f).
When a case is transferred under 28 U.S.C. § 1631,
the date of filing in the transferor court is used as the
date of filing in the transferee court. See 28 U.S.C. § 1631
(“the [transferred] action or appeal shall proceed as if it
had been filed in or noticed for the court to which it is
transferred on the date upon which it was actually filed in
or noticed for the court from which it is transferred.”).
Thus, were we to transfer this case to the Court of Federal
Claims, that court would proceed as if Sheridan had filed
its petition on July 15, 2015, more than three years past
the accrual date. We see no basis for equitable tolling of
the three-year time limit of 49 U.S.C. § 14705(f), at least
in this case. Cf. John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 136–39 (2008) (no equitable tolling
of 28 U.S.C. § 2501); Air Express Int’l Corp. v. United
States, 439 F.2d 157, 159 (Ct. Cl. 1971) (limitations period
for Transportation Act lawsuit is not tolled by pursuit of
agency relief); Iran Nat’l Airlines Corp. v. United States,
360 F.2d 640, 642 (Ct. Cl. 1966). In Inter-Coastal, we
treated that time limit as jurisdictional. 269 F.3d at
1375. At a minimum, it does not seem to us to be in the
interest of justice to transfer this matter, given all the
facts, once we decide, as we have, that we lack jurisdiction
to review the Board’s decision.
The appeal is therefore dismissed.
No costs.
DISMISSED