Guardian Angels Med. Serv. v. United States , 809 F.3d 1244 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
GUARDIAN ANGELS MEDICAL SERVICE DOGS,
INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5058
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00020-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: January 8, 2016
______________________
JOSEPH A. DAVIDOW, Willis & Davidow, LLC, Naples,
FL, argued for appellant.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for appellee. Also represented by
DEBORAH A. BYNUM, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before REYNA, MAYER, and CHEN, Circuit Judges.
2 GUARDIAN ANGELS MED. SERV. v. US
MAYER, Circuit Judge.
Guardian Angels Medical Service Dogs, Inc. (“Guardi-
an Angels”) appeals a final judgment of the United States
Court of Federal Claims dismissing its claim as time-
barred. Guardian Angels Med. Serv. Dogs, Inc. v. United
States, 118 Fed. Cl. 87, 88 (2014) (“Trial Court Decision”).
We reverse and remand.
I. BACKGROUND
Guardian Angels entered into a firm fixed-price blan-
ket purchase agreement, Contract No. VA248-BP-0218
(“BPA 218”), with the Department of Veterans Affairs
(“VA”) on June 26, 2011. Pursuant to this agreement,
Guardian Angels agreed to furnish service dogs trained to
meet the needs of disabled veterans and to provide health
insurance for the dogs it supplied. On August 5, 2011, the
parties executed a modification to BPA 218 which re-
quired Guardian Angels to provide an increased number
of service dogs.
Approximately one year later, the contracting officer
sent Guardian Angels an email stating that “some ques-
tions ha[d] been raised” about its performance under the
contract. On August 31, 2012, the contracting officer sent
Guardian Angels a notice terminating BPA 218 for de-
fault and suspending any open delivery orders issued
under the contract. The default termination notice in-
formed Guardian Angels that it had the right to appeal
the termination under the disputes clause of the parties’
contract. This disputes clause incorporated by reference
Federal Acquisition Regulation (“FAR”) 52.233-1, a
lengthy provision which states, among other things, that
“[t]his contract is subject to 41 U.S.C. chapter 71,” and
that a “Contracting Officer’s decision shall be final unless
the Contractor appeals or files a suit as provided in 41
U.S.C. chapter 71.” 48 C.F.R. § 52.233-1(a), (f).
GUARDIAN ANGELS MED. SERV. v. US 3
On December 21, 2012, Guardian Angels sent a letter
to Dr. Sunil Sen-Gupta, an official at the VA’s Rehabilita-
tion Research & Development Service. In this letter,
Guardian Angels argued that it had fulfilled its duties
under BPA 218 and that the default termination should
be converted to a termination for the convenience of the
government. On February 28, 2013, Guardian Angels
sent a letter to the contracting officer, stating that it was
making a “formal demand against the [VA]” and that it
“materially disagree[d]” with the decision to terminate
BPA 218 for default. Guardian Angels further asserted
that because BPA 218 should have been terminated for
convenience rather than cause, it was entitled to be paid
“a percentage of the contract price reflecting the percent-
age of work performed prior to the notice of termination,
plus reasonable charges that have resulted and will
continue to result from the termination.”
On March 21, 2013, the contracting officer sent
Guardian Angels a letter stating that she had received
the claim that it had submitted on February 28, 2013, but
that she could not “reasonably evaluate or respond to
[that] claim due to the lack of supporting documentation
provided with the claim.” The contracting officer directed
Guardian Angels to “provide all expense documentation”
supporting its claim at its “earliest convenience,” and
explained that once the VA had received this documenta-
tion it could “proceed with a review of the material and
provide a response as required by the [FAR].”
Guardian Angels then began compiling documenta-
tion supporting its claim. On May 3, 2013, however, the
contracting officer sent Guardian Angels another letter,
stating that she had not yet received the documentation
she had requested in her March 2013 letter and that she
had not reconsidered, and would not reconsider, her
August 2012 default termination decision. The contract-
ing officer advised Guardian Angels that it had “the right
4 GUARDIAN ANGELS MED. SERV. v. US
to appeal [the default termination] decision at the U.S.
Court of Federal Claims pursuant to 41 U.S.C. § 7104(b).”
On January 7, 2014, Guardian Angels brought suit in
the Court of Federal Claims. In its complaint, it alleged
that it had fulfilled its contractual obligations under BPA
218 and that the contract should have been terminated
for convenience rather than cause. Guardian Angels
sought damages of $1,046,474.30, asserting that it was
entitled to be paid for work performed under the contract
prior to the notice of termination and to be compensated
for the “reasonable charges” resulting from that termina-
tion.
On August 29, 2014, the Court of Federal Claims
dismissed Guardian Angels’ complaint for lack of jurisdic-
tion. In the court’s view, Guardian Angels’ claim was
time-barred because it “failed to file its complaint within
12 months of receiving the Contracting Officer’s August
31, 2012 decision to terminate the contract for default.”
Trial Court Decision, 118 Fed. Cl. at 90. In rejecting
Guardian Angels’ argument that it was required to file a
written claim with the contracting officer prior to filing
suit, the court explained that a default termination is a
government claim which is “immediately appealable.” Id.
at 91. The court found no merit in Guardian Angels’
assertion that the formal dispute letter it sent to the
contracting officer in February 2013 extended the statuto-
ry appeal period, concluding that this contention was
premised on a “fundamental misunderstanding of the
nature of a termination for default under the procedural
regime established by the Contract Disputes Act.” Id.
On September 18, 2014, Guardian Angels filed a
motion for reconsideration. It argued that the Court of
Federal Claims erred in dismissing its complaint as
untimely because it was not until it received the contract-
ing officer’s May 3, 2013 letter that its “rights . . . were
terminated, thereby triggering the twelve (12) month
GUARDIAN ANGELS MED. SERV. v. US 5
statute of limitations under [41 U.S.C. § 7104(b)(3)].”
The trial court rejected this argument. See Guardian
Angels Med. Serv. Dogs, Inc. v. United States, 120 Fed. Cl.
8, 9–10 (2015) (“Reconsideration Decision”). The court
determined that Guardian Angels’ February 2013 formal
dispute letter qualified as a request for reconsideration of
the contracting officer’s August 2012 decision to terminate
BPA 218 for default. Id. at 10. It further acknowledged
that, under certain circumstances, “a request for recon-
sideration of a contracting officer’s final decision may toll
the statute of limitations.” Id. The court concluded,
however, that because the contracting officer “spent no
time reviewing” Guardian Angels’ request for reconsidera-
tion, that request did not suspend the running of the
twelve-month appeal period. Id. According to the court,
because the contracting officer “did not reconsider her
decision, the statute of limitations was never tolled, and
the appeal period expired 12 months after [Guardian
Angels] received the Contracting Officer’s August 31,
2012 decision to terminate for default.” Id.
Guardian Angels then appealed to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
While we review the legal conclusions of the Court of
Federal Claims de novo, we review its factual findings for
clear error. Sikorsky Aircraft Corp. v. United States, 773
F.3d 1315, 1322 (Fed. Cir. 2014); Raytheon Co. v. United
States, 747 F.3d 1341, 1348 (Fed. Cir. 2014).
II. DISCUSSION
A. The Requirement of a Final Decision from the
Contracting Officer
Under the Contract Disputes Act (“CDA”), a contrac-
tor has the option of appealing a contracting officer’s
decision either to the appropriate board of contract ap-
peals or the Court of Federal Claims. See 41 U.S.C.
§ 7104. Regardless of which forum a contractor elects,
however, only final contracting officer decisions may be
6 GUARDIAN ANGELS MED. SERV. v. US
appealed. See M. Maropakis Carpentry, Inc. v. United
States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (emphasizing
that the Court of Federal Claims’ authority to adjudicate
a CDA claim “requires both a valid claim and a contract-
ing officer’s final decision on that claim”); James M. Ellett
Constr. Co. v. United States, 93 F.3d 1537, 1541 (Fed. Cir.
1996) (explaining that the CDA extends to “actions
brought on claims within twelve months of a contracting
officer’s final decision”); Reflectone, Inc. v. Dalton, 60 F.3d
1572, 1573 (Fed. Cir. 1995) (en banc) (“Board jurisdiction
is grounded in the CDA which authorizes Board review
only of a contracting officer’s final decision on a ‘claim.’”).
Accordingly, although a termination for default is deemed
to be a government, rather than a contractor, claim, see
Malone v. United States, 849 F.2d 1441, 1443–44, modi-
fied on other grounds, 857 F.2d 787 (Fed. Cir. 1988), the
linchpin for the start of the statutory appeal period is a
final decision by a contracting officer terminating a con-
tract for cause. See Placeway Constr. Corp. v. United
States, 920 F.2d 903, 906 (Fed. Cir. 1990) (“Generally,
exhaustion of administrative remedies should occur before
a case is ripe for judicial review.”); see also Pathman
Constr. Co. v. United States, 817 F.2d 1573, 1579 (Fed.
Cir. 1987) (“Compelling the contractor to file suit at what
may be a relatively early stage of its negotiations and
discussions with the contracting officer is likely to impede
the free exchange of vital information between the con-
tractor and the contracting officer that is necessary for a
settlement.”).
Resolution of the present appeal turns on when the
contracting officer issued a final decision terminating
BPA 218 for default. The government argues that the
contracting officer’s August 2012 default termination
notice was a final decision, and that Guardian Angels’
claim is time-barred because it failed to file suit within
twelve months of receiving that notice. See 41 U.S.C.
§ 7104(b)(3) (requiring a contractor to bring suit in the
GUARDIAN ANGELS MED. SERV. v. US 7
Court of Federal Claims “within 12 months from the date
of receipt of a contracting officer’s decision”). The gov-
ernment does not dispute that Guardian Angels had the
right to seek reconsideration of the contracting officer’s
August 2012 default termination decision. See Tokyo
Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352,
1360 (Fed. Cir. 2008) (“The power to reconsider is inher-
ent in the power to decide. . . . For this reason, the courts
have uniformly concluded that administrative agencies
possess inherent authority to reconsider their decisions,
subject to certain limitations, regardless of whether they
possess explicit statutory authority to do so.”); Dayley v.
United States, 169 Ct. Cl. 305, 308 (1965) (“[U]nless there
is legislation to the contrary it is the inherent right of
every tribunal to reconsider its own decisions within a
short period after the making of the decision and before
an appeal has been taken or other rights vested.”); see
also Summit Contractors v. United States, 15 Cl. Ct. 806,
808 (1988) (explaining that although the CDA does not
explicitly provide for reconsideration of a contracting
officer’s decision, it is firmly established that “an adminis-
trative agency may reconsider its own decisions” (citations
and internal quotation marks omitted)). It argues, how-
ever, that because the contracting officer “did not spend
any time considering [Guardian Angels’] request for
reconsideration,” that request did not abrogate the finali-
ty of the August 2012 default termination notice or sus-
pend the running of the twelve-month limitations period.
We disagree with the government. Under the facts of
this case, we hold that whether the contracting officer
“spends time” considering the request is not the proper
standard. On February 28, 2013, Guardian Angels sent a
letter to the contracting officer requesting reconsideration
of her August 2012 default termination decision and
asserting that BPA 218 should have been terminated for
8 GUARDIAN ANGELS MED. SERV. v. US
convenience rather than cause. * In response, the con-
tracting officer, in a letter dated March 21, 2013, directed
Guardian Angels to provide documentation supporting its
claim at its “earliest convenience” and stated that she
would then “proceed with a review of the material and
provide a response as required by the [FAR].” J.A. 71. If
the August 2012 termination for default had been a final
and irrevocable decision, there would have been no reason
for the contracting officer to request—or agree to evalu-
ate—additional documentation supporting Guardian
Angels’ claim that BPA 218 should have been terminated
for the convenience of the government. See, e.g., Crippen
& Graen Corp. v. United States, 18 Cl. Ct. 237, 240 (1989)
(concluding that a government demand letter seeking the
return of unliquidated progress payments was not a final
contracting officer decision because “[t]he clear intent of
the letter was to allow the contracting officer to gather
and consider all relevant information concerning the
dispute in rendering a final decision”); Summit Contrac-
tors, 15 Cl. Ct. at 807 (concluding that the finality of a
decision was suspended where the contracting officer
* Although we can imagine letters from a contractor
to a contracting officer that would not provide sufficient
information and therefore could not be properly character-
ized as a complete request for reconsideration, the gov-
ernment does not challenge the trial court’s determination
that Guardian Angels’ February 2013 letter qualified as a
valid request for reconsideration of the contracting of-
ficer’s August 2012 default termination decision. See
Reconsideration Decision, 120 Fed. Cl. at 10 (“Because the
Contracting Officer had to reverse the default termination
to provide [Guardian Angels] its requested relief on
reconsideration, [its] February 28, 2013 letter qualifies as
a request for reconsideration.”). Nor does the government
object to the timeliness of Guardian Angels’ request for
reconsideration.
GUARDIAN ANGELS MED. SERV. v. US 9
“reviewed the record” in response to a contractor’s request
for reconsideration, notwithstanding the fact that the
contracting officer ultimately affirmed his original termi-
nation decision); Devi Plaza, LLC v. Dep’t of Agric., CBCA
No. 1239, 09-1 BCA ¶ 34033 (2008) (concluding that there
was no “final decision” and that the appeal period did not
commence where a contracting officer “indicated that he
was willing to continue a meaningful and productive
dialogue” with the contractor after issuing the decision);
Nachtmann Analytical Labs., ASBCA No. 35037, 88-1
BCA ¶ 20229 (1987) (explaining that where a contracting
officer issues a default termination notice but, in response
to a contractor’s request for reconsideration, undertakes a
“review of the facts surrounding the default termination,”
the finality of the original termination decision is vitiat-
ed); Johnson Controls, Inc., ASBCA No. 28340, 83-2 BCA
¶ 16,915 (1983) (concluding that a contracting officer’s
initial decision was “not truly final” where he subsequent-
ly granted the contractor an audience to discuss the
“merits” of that decision and did not “make it very clear”
that the original appeal period was running).
The situation here parallels that presented in Roscoe-
Ajax Construction Co. v. United States, 458 F.2d 55 (Ct.
Cl. 1972). There, a contracting officer issued a decision
adverse to the contractor, but subsequently agreed to
meet with the contractor to “discuss and consider the
problem further.” Id. at 61. Although the contracting
officer ultimately declined to modify his original decision,
the United States Court of Claims, one of our predecessor
courts, held that his willingness to meet with the contrac-
tor to discuss his original decision “served to keep the
matter open and necessarily destroyed any finality [the
original] decision theretofore had.” Id. at 63. The court
explained that “[t]he Contracting Officer’s agreement to
meet for further discussions of the disputed subject would
have been meaningless unless the purpose was to give
[the contractor] further opportunity to be heard, and if
10 GUARDIAN ANGELS MED. SERV. v. US
persuaded as to the correctness of [the contractor’s]
position, to change his position.” Id. (citations and inter-
nal quotation marks omitted).
A similar analysis applies here. The contracting of-
ficer’s decision, in March 2013, to obtain and review
additional documentation on the question of whether BPA
218 should have been terminated for convenience rather
than cause “served to keep the matter open,” id., and
vitiated the finality of her original default termination
notice. An agency decision will be deemed final only if it
“mark[s] the consummation of the agency’s decisionmak-
ing process.” Bennett v. Spear, 520 U.S. 154, 178 (1997)
(citations and internal quotation marks omitted). Be-
cause the contracting officer’s March 2013 letter evinced a
clear willingness to consider additional evidence, it was
reasonable for Guardian Angels to conclude that the VA
had not yet made any definitive determination on wheth-
er to terminate BPA 218 for default and that the twelve-
month statutory appeal period therefore had not yet
begun to run. See Zomord Co., ASBCA No. 59065, 14-1
BCA ¶ 35626 (2014) (explaining that the limitations
period does not begin to run if a contractor “present[s]
evidence showing that it reasonably could have concluded
that the [contracting officer’s] decision was being recon-
sidered”); Royal Int’l Builders Co., ASBCA No. 42637, 92-
1 BCA ¶ 24684 (1992) (“While receipt by the contracting
officer of a request for reconsideration of a decision in
itself does not serve to vacate a decision or the period in
which to appeal, reconsideration of a decision by the
contracting officer or creation of a reasonable appearance
that the decision is being reconsidered both serve to vacate
the earlier decision along with the accompanying appeal
period.” (emphasis added)). This is particularly true
given that the August 2012 default termination notice did
GUARDIAN ANGELS MED. SERV. v. US 11
not explicitly state that the time period for appeal began
to run on the date it was issued. **
The fact that in May 2013 the contracting officer re-
versed course—sending a letter to Guardian Angels
stating that she had not yet received the additional docu-
mentation she had requested and that she had not recon-
sidered and would not reconsider her original default
termination decision—does not alter this result. In eval-
uating whether the August 2012 default termination
notice qualified as a final contracting officer decision
sufficient to trigger the twelve-month statutory appeal
period, our focus must be on the contracting officer’s
actions, not on her own after-the-fact characterization of
those actions. See ICC v. Bhd. of Locomotive Eng’rs, 482
U.S. 270, 281 (1987) (“Locomotive Eng’rs”) (explaining
that it is an agency’s “action, rather than its discussion,
that is dispositive”); VWP of Am., Inc. v. United States,
163 F. Supp. 2d 645, 655 (Ct. Int’l Trade 2001) (“Actions
speak louder than words . . . . In the case of inconsisten-
cy, conduct controls.”). Although the contracting officer
stated in May 2013 that she had not reconsidered her
August 2012 default termination decision, this statement
cannot override or erase the fact that in March 2013 she
** The August 2012 default termination notice did
inform Guardian Angels that it had the right to appeal as
provided in the disputes clause of BPA 218. J.A. 67. This
disputes clause incorporated by reference FAR 52.233-1,
which provides that “[t]he Contracting Officer’s decision
shall be final unless the Contractor appeals or files a suit
as provided in 41 U.S.C. chapter 71.” Significantly,
however, FAR 52.233-1 does not address the issue of
whether a contractor’s timely request for reconsideration
vitiates the finality of a contracting officer’s original
decision or extends the time deadline for challenging that
decision in the Court of Federal Claims.
12 GUARDIAN ANGELS MED. SERV. v. US
agreed to review and respond to additional evidence on
the question of whether BPA 218 should have been termi-
nated for convenience. See Vepco of Sarasota, Inc. v.
United States, 26 Cl. Ct. 639, 645 (1992), aff’d without
opinion, 6 F.3d 786 (Fed. Cir. 1993) (concluding that the
fact that the contracting officer unequivocally stated that
he did not reconsider his original decision was not deter-
minative on the question of whether the finality of that
decision was suspended); see also Ralph C. Nash & John
Cibinic, Reconsideration of Final Decisions: It’s Not Over
Until It’s Over, 3 No. 2 Nash & Cibinic Rep. ¶ 13 (1989)
(explaining that if a contracting officer wishes to avoid a
determination that a decision has been reconsidered he or
she “should refrain from any discussions, negotiations,
review of documents or other actions which could be
considered to be a de facto reconsideration”). The con-
tracting officer’s March 2013 letter vitiated the finality of
her August 2012 default termination notice and it was not
until May 2013—when she unequivocally denied Guardi-
an Angels’ request for reconsideration—that the VA
issued a final decision terminating BPA 218 for cause.
See Dayley, 169 Ct. Cl. at 309 (“The general rule is that
the period for appeal or review does not begin to run until
the disposition of a timely request for reconsideration,
rehearing, or new trial, because such a request suspends
the finality of the decision pending a ruling on the appli-
cation.”); see also B.D. Click Co. v. United States, 225 Ct.
Cl. 605, 607 (1980). Because Guardian Angels submitted
its complaint to the Court of Federal Claims within
twelve months of the VA’s May 2013 final decision, its
suit was timely filed.
B. The Effect of a Motion for Reconsideration
In many situations, a timely request for reconsidera-
tion is sufficient to render an agency decision non-final
and thereby suspend the running of the appeal period.
See, e.g., Locomotive Eng’rs, 482 U.S. at 284–85 (explain-
ing that under the Hobbs Act, 28 U.S.C. § 2344, a petition
GUARDIAN ANGELS MED. SERV. v. US 13
for administrative reconsideration stays the running of
the limitations period until the petition has been acted
upon by the agency); Clifton Power Corp. v. FERC, 294
F.3d 108, 110 (D.C. Cir. 2002) (“A request for administra-
tive reconsideration renders an agency’s otherwise final
action non-final with respect to the requesting party.”);
V.I. Conservation Soc’y, Inc. v. Virgin Is. Bd. of Land Use
Appeals, 881 F.2d 28, 31 (3d Cir. 1989) (“We think that
the federal law is clear that a pending petition for agency
reconsideration, timely filed, renders the underlying
agency action nonfinal and thus nonreviewable with
respect to the filing party. Thus, the statute of limita-
tions for judicial review is tolled until the agency decides
the petition for reconsideration.”); see also United States
v. Dieter, 429 U.S. 6, 8 (1976) (noting “that the consistent
practice in civil and criminal cases alike has been to treat
timely petitions for rehearing as rendering the original
judgment nonfinal for purposes of appeal for as long as
the petition is pending”). Indeed, although the Adminis-
trative Procedure Act specifically states that “agency
action otherwise final is final for the purposes of this
section whether or not there has been presented . . . an
application for . . . any form of reconsideration,” 5 U.S.C.
§ 704, the Supreme Court has made clear that this lan-
guage serves “merely to relieve parties from the require-
ment of petitioning for rehearing before seeking judicial
review . . . but not to prevent petitions for reconsideration
that are actually filed from rendering the orders under
reconsideration nonfinal.” Locomotive Eng’rs, 482 U.S. at
284–85; see also Am. Farm Lines v. Black Ball Freight
Serv., 397 U.S. 532, 541 (1970).
Here, however, we need not—and therefore do not—
decide whether under section 7104(b)(3) a request for
reconsideration vitiates the finality of a contracting
officer’s decision only if the contracting officer actually
“spends time” considering that request. For example, we
do not hold, at this point, that all communications from a
14 GUARDIAN ANGELS MED. SERV. v. US
contracting officer after receipt of a request for reconsid-
eration will be sufficient to evince the necessary willing-
ness to entertain the request for reconsideration. Given
this recognition, we do not address the question of wheth-
er, in the absence of any indication that the contracting
officer is open to reconsidering, the finality of the original
decision may be suspended if the contracting officer
nevertheless “spends time” considering the request. See
Reconsideration Decision, 120 Fed. Cl. at 10; Arono, Inc. v.
United States, 49 Fed. Cl. 544, 550 (2001) (“[A] reaffirma-
tion of a final [contracting officer’s] decision does not, per
se, constitute reconsideration of that decision. Instead, it
is the amount of time, if any, a contracting officer spends
reviewing a [contractor’s] request for reconsideration that
suspends the finality of the decision regardless of whether
that decision is ultimately reconsidered or reversed.”).
Rather, we hold only that because the contracting officer
agreed in March 2013 to obtain and evaluate additional
evidence on the question of whether BPA 218 should have
been terminated for convenience rather than cause, her
August 2012 default termination notice was not a final
decision sufficient to trigger the twelve-month statutory
appeal period. Thus, the twelve-month statutory appeal
period did not begin to run until the contracting officer
rejected Guardian Angels’ request for reconsideration on
May 3, 2013.
Nor need we decide whether compliance with the
twelve-month filing period set out in section 7104(b)(3) is
a jurisdictional requirement. The Supreme Court in
recent years has repeatedly emphasized that “filing
deadlines ordinarily are not jurisdictional.” Sebelius v.
Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 825 (2013); see
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632
(2015) (“[T]he Government must clear a high bar to
establish that a statute of limitations is jurisdictional.”);
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
439–42 (2010) (concluding that the 120-day deadline for
GUARDIAN ANGELS MED. SERV. v. US 15
filing a notice of appeal with the United States Court of
Appeals for Veterans Claims is a claim-processing rule
rather than a jurisdictional requirement). Accordingly,
we held in Sikorsky that the failure to comply with 41
U.S.C. § 7103(a)(4)(A), which requires a claim related to a
government contract to be submitted within six years of
the date it accrues, does not create a jurisdictional bar.
773 F.3d at 1322 (explaining that section 7103(a)(4)(A)
“does not have any special characteristic that would
warrant making an exception to the general rule that
filing deadlines are not jurisdictional”). Here, however,
the dispositive issue is not whether the twelve-month
appeal period set out in section 7104(b)(3) is a jurisdic-
tional prerequisite, but instead when that appeal period
begins to run. See Stone v. INS, 514 U.S. 386, 395 (1995)
(explaining that “[f]inality is the antecedent question” in
assessing the timeliness of an appeal).
III. CONCLUSION
Accordingly, the judgment of the United States Court
of Federal Claims is reversed and the case is remanded
for further proceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
No costs.