Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
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MOTION TO DISMISS IN PART GRANTED: June 11, 1998
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GSBCA 14165
WESTERN AVIATION MAINTENANCE, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Floyd D. Stilwell, President of Western Aviation
Maintenance, Inc., Mesa, AZ, appearing for Appellant.
Michael J. Noble, Office of General Counsel, General
Services Administration, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, DeGRAFF, and GOODMAN.
DeGRAFF, Board Judge.
Pending is respondent's motion to dismiss the part of this
appeal that requests specific performance. For the reasons set
out below, we grant the motion.
Background
In February 1996, Western Aviation Maintenance, Inc.
(Western Aviation) submitted bids to purchase several airplanes
at a sale conducted by the General Services Administration (GSA).
GSA accepted Western Aviation s bids for five of the airplanes.
After the sale, the Department of the Air Force, which had
custody of the airplanes, asked GSA to terminate the sales
contracts because the airplanes were possibly contaminated with
dioxin. After some discussion, GSA terminated the sales
contracts with Western Aviation.
Western Aviation submitted a claim to the GSA contracting
officer, asking for specific performance of the sales contracts
and for money damages in excess of $100,000. On April 8, 1997,
the contracting officer denied the claim. Western Aviation filed
this appeal on April 28, 1997.
On February 2, 1998, the Board advised the parties that
there appeared to be a problem with its jurisdiction to consider
Western Aviation s claim for money damages, because Western
Aviation had not certified the claim as required by the Contract
Disputes Act, 41 U.S.C. 605 (1994). The Board told the parties
that if Western Aviation did not supply a certification, the
Board would entertain a motion to dismiss the claim for money
damages. The Board also advised the parties that if Western
Aviation supplied a certification, GSA should review the claim
and either issue a new contracting officer's decision or, if it
wished, stipulate that the contracting officer's April 8, 1997
decision served as a de facto decision denying the certified
claim, as was permitted in United States v. Hamilton Enterprises,
Inc., 711 F.2d 1038 (Fed. Cir. 1983).
On April 21, 1998, GSA filed a motion to dismiss the entire
appeal for lack of prosecution. On April 27, 1998, the Board
issued an order stating that we would consider the motion to
dismiss the money damages portion of the appeal as a motion to
dismiss for lack of jurisdiction, because granting GSA s motion
would operate as a dismissal on the merits which would be
inappropriate if we lacked jurisdiction. Our order also stated
that we would consider the motion to dismiss the specific
performance portion of the appeal as a motion to dismiss for lack
of jurisdiction or for failure to state a claim upon which relief
could be granted.
On May 8, 1998, in response to GSA s motion, Western
Aviation submitted a certification of its claim for money
damages. Western Aviation did not address the specific
performance issue raised by GSA. In its May 15, 1998 reply to
Western Aviation's response, GSA withdrew its motion to dismiss
the money damages portion of the appeal. GSA stated that it saw
no need for Western Aviation to resubmit its money claim for a
new decision by the contracting officer.[foot #] 1 GSA
continues to ask us to dismiss Western Aviation's request for
specific performance.
Discussion
Before enactment of the Contract Disputes Act (CDA) in 1978,
the authority of agency boards of contract appeals was based upon
the terms of contracts between appellants and agencies. In
exercising their authority, the boards granted monetary relief,
and when they considered appeals concerning the propriety of
terminations for default, rights in technical data, and
compliance with cost accounting standards, for example, they
granted declaratory relief. The boards did not, however, grant
other forms of equitable relief, such as injunctive relief or
specific performance. Ulric McMillan dba Atrum Graphic Studios,
GSBCA 7029-COM, et al., 83-2 BCA 16,595; General Electric
Automated Systems Division, ASBCA 36214, 89-1 BCA 21,195;
McDonnell Douglas Corp., ASBCA 26747, 83-1 BCA 16,377, aff'd in
part and rev'd in part, 754 F.2d 365 (Fed. Cir. 1985).
After the CDA was enacted, the authority of the boards to
entertain appeals was based upon the statute s grant of
jurisdiction to the boards to decide "any appeal from a decision
of a contracting officer." The CDA provided that in exercising
this jurisdiction, the boards could grant any relief that would
be available to a litigant asserting a contract claim in the
United States [Court of Federal Claims]."[foot #] 2 41
U.S.C. 607(d). A litigant asserting a CDA contract claim in
the Court of Federal Claims could obtain only monetary relief,
see Bowen v. Massachusetts, 487 U.S. 879, 905 (1988), because the
court s jurisdiction derived from the Tucker Act, 28 U.S.C.
1491(a)(2) (1988), which did not waive the sovereign immunity of
the United States from suits for equitable relief in post-award
contract cases.
In Malone v. United States, 849 F.2d 1441, modified, 857
F.2d 787 (Fed. Cir. 1988), the United States Court of Appeals for
the Federal Circuit explained that in CDA cases, litigants in the
boards could continue to request declaratory relief and the
----------- FOOTNOTE BEGINS ---------
[foot #] 1 We consider GSA's May 15, 1998 reply to
constitute the stipulation permitted by Hamilton Enterprises.
____________________
[foot #] 2 The United States Claims Court was the
successor to the original (trial) jurisdiction of the United
States Court of Claims. Federal Courts Improvement Act of 1982,
Pub.L. No. 97-164, 96 Stat. 25. In 1992, Congress changed the
name of the Claims Court to the United States Court of Federal
Claims. Court of Federal Claims Technical and Procedural
Improvements Act of 1992, Pub.L. No. 102-572, tit. IX, 902, 106
Stat. 4516. Herein, we refer to the court as the Court of
Federal Claims.
----------- FOOTNOTE ENDS -----------
boards could continue to grant such relief, just as they had done
pre-CDA. In Overall Roofing & Construction, Inc. v. United
States, 929 F.2d 687 (Fed. Cir. 1991), the Court of Appeals
explained that litigants in the Court of Federal Claims had to
continue to request monetary relief in order for the court to
have jurisdiction. The decision in Overall Roofing clearly
established that the range of remedies available to litigants in
the Court of Federal Claims was more limited than that available
to litigants in the boards.
In the Federal Courts Administration Act of 1992, Congress
amended the Tucker Act, so that the final sentence of section
1491(a)(2) now reads (new language italicized):
The Court of Federal Claims shall have jurisdiction to
render judgment upon any claim by or against, or
dispute with, a contractor arising under section
10(a)(1) of the Contract Disputes Act of 1978,
including a dispute concerning termination of a
contract, rights in tangible or intangible property,
compliance with cost accounting standards, and other
nonmonetary disputes on which a decision of the
contracting officer has been issued under section 6 of
that Act.
28 U.S.C. 1491(a)(2) (1994).
There is only one piece of legislative history explaining
this change to the Tucker Act, and it says that the language
shown above in italics was meant to
clarify the power of the Court of Federal Claims to
hear appeals of all contracting officers final
decisions, regardless of whether the dispute involves a
claim for money currently due. The amendment will
restore the option of appealing any final decisions to
either the Court of Federal Claims or agency board of
contract appeals [as] was intended in the Contract
Disputes Act.
138 Cong. Rec. S17799 (daily ed. Oct. 8, 1992) (statement of Sen.
Heflin, chairman of subcommittee that reported legislation).
The question presented here is whether the 1992 amendment to
the Tucker Act constitutes a waiver of the Government's sovereign
immunity from suits for specific performance in CDA cases. If
so, then the Court of Federal Claims and the boards can now
provide relief in such cases.
We conclude that although the 1992 amendment expanded the
Tucker Act's waiver of sovereign immunity in CDA cases, the scope
of the waiver does not include suits for specific performance.
The expressed intent of Congress in the 1992 amendment was to
provide the Court of Federal Claims with the ability to consider
cases in which litigants asked for something other than monetary
relief, and to provide litigants with the option of proceeding at
either the court or at the boards. As the result of the 1992
amendment, declaratory relief is now available from both the
boards and the court in CDA cases. Congress did not, however,
express any intent to waive the Government's immunity from suits
for specific performance, and we will not infer such an
intention.
In Quality Tooling, Inc. v. United States, 47 F.3d 1569
(Fed. Cir. 1995), the Court of Appeals explained that in order to
determine whether a statute constituted a waiver of sovereign
immunity, it would look to see whether Congress had manifested a
"clear and undisputed" intention to waive the Government's
immunity from suit. 47 F.3d at 1576. The Court stated:
[W]aiver of sovereign immunity is accomplished not by
"a ritualistic formula;" rather intent to waive
immunity and the scope of such a waiver can only be
ascertained by reference to underlying congressional
policy. Franchise Tax Bd. of California v. United
States Postal Serv., 467 U.S. 512, 521, 104 S. Ct.
2549, 2554, 81 L. Ed. 2d 446 (1984) (quoting Keifer &
Keifer v. Reconstruction Finance Corp., 306 U.S. 381,
389, 59 S. Ct. 516, 517-18, 83 L. Ed. 784 (1939).
47 F.3d at 1575. This guidance is useful in considering whether
the Tucker Act amendment waived sovereign immunity from suits for
specific performance.
In the 1992 amendment to the Tucker Act, the clear and
undisputed intent of Congress was to permit the Court of Federal
Claims to consider CDA cases in which litigants did not seek
monetary relief, and to permit litigants to proceed at either the
boards or the court. The underlying policy that prompted the
amendment, as mentioned in the legislative history, is that the
CDA was meant to provide litigants with the option of proceeding
in either the boards or the court. Prior to the amendment,
however, litigants could proceed in the boards, but not in the
court, to obtain nonmonetary relief in cases concerning
terminations of contracts, rights in tangible or intangible
property, compliance with cost accounting standards, and a few
other types of cases. The purpose of the amendment was to ensure
the functional equality of the two forums in CDA cases.
In amending the Tucker Act, Congress manifested no intent to
waive the Government's immunity from suits for specific
performance. The sparse legislative history of the amendment
does not mention specific performance at all, much less express
any intent to waive immunity from specific performance suits.
Congress gave no indication that it meant to do anything more
than to provide the Court of Federal Claims with the ability to
furnish the same type of relief that was available at the boards.
The type of relief afforded by the boards, however, was limited
to declaratory relief, and did not extend to other types of
equitable relief, such as specific performance. The disputes
specifically mentioned in the amendment -- disputes concerning
terminations of contracts, rights in tangible or intangible
property, and compliance with cost accounting standards -- are
those in which boards had historically provided only declaratory
relief.
In the absence of a clear expression of Congressional intent
to waive the sovereign's immunity from suits for specific
performance, we cannot read the 1992 amendment to the Tucker Act
as containing such a waiver. The Supreme Court has never
"lightly inferred the United States' consent to suit" when
considering the scope of the Tucker Act. United States v.
Mitchell, 463 U.S. 206, 218 (1983). In one of the earliest
decisions addressing the scope of the Tucker Act, the Supreme
Court read the statute as not waiving the Government's immunity
from suits for specific performance. United States v. Jones, 131
U.S. 1 (1889). More than one hundred years later, Congress
recognized the continuing limitation upon the scope of the Tucker
Act s waiver of sovereign immunity when it noted that creating a
monetary remedy in the predecessor to the Court of Federal Claims
"was intended to foreclose specific performance of government
contracts." H.R. Rep. No. 1656, 94th Cong., 2d Sess. 12-13
(1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6132, 6133. In
order for us to conclude that Congress meant for the 1992 Tucker
Act amendment to depart from more than one hundred years of
practice and precedent by waiving the Government's immunity from
suits for specific performance, we would have to find some clear
evidence that this was the intent of Congress, and we have found
no such evidence.
In summary, boards can grant relief to appellants if such
relief is available to litigants in the Court of Federal Claims.
Before the 1992 amendment to the Tucker Act, neither boards nor
the court could provide specific performance relief. By
amending the Tucker Act, Congress intended to expand the
statute's waiver of sovereign immunity in order to provide the
Court of Federal Claims with the ability to provide declaratory
relief in CDA cases, just as the boards were able to do. We find
no evidence that Congress intended for the 1992 amendment to
waive the Government's immunity from suits for specific
performance in the Court of Federal Claims. Because the
amendment did not make specific performance relief available to
litigants in the Court of Federal Claims, such relief is not
available at the boards.
Decision
Respondent's motion is GRANTED. We dismiss the portion of
the appeal that requests specific performance and retain
jurisdiction to consider the remainder of the appeal, which
requests monetary relief.
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MARTHA H. DeGRAFF
Board Judge
We concur:
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JOSEPH A. VERGILIO ALLAN H. GOODMAN
Board Judge Board Judge