               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
The Ryan Company                               )      ASBCA No. 58137
                                               )
Under Contract No. DACW69-02-C-OOO 1           )

APPEARANCES FOR THE APPELLANT:                        Lawrence M. Prosen, Esq.
                                                      Christian F. Henel, Esq.
                                                       Thompson Hine LLP
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Willie J. Williams, Esq.
                                                      Bradley J. Stark, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Huntington

       OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE
    GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       This appeal arises under Contract No. DACW69-02-C-0001 awarded by the
United States Army Corps of Engineers (Corps or government) to The Ryan Company
(TRC) for certain electrical work including the installation of back-up generators. The
government moves to dismiss TRC's appeal for lack of jurisdiction asserting that, with
the exception of certain "minor claim items" for which the contracting officer has
found entitlement, TRC's claim was not submitted to the government within the
six-year period required by the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109. TRC opposes the motion.

        The government's motion and supporting brief is styled as a motion to dismiss
for lack of jurisdiction and throughout its 59 pages is grounded upon the sole basis of
TRC's alleged failure to submit its claims within the CDA's six-year statute of
limitations. Nevertheless, the introductory paragraph on page 1 contains the following
sentence:

               There is no genuine issue as to any material fact and
               Respondent is entitled to an Order dismissing the appeal,
               save the nine (9) minor items as noted herein, as a matter
               of law.
(Gov't mot. at 1) With the exception of the above-quoted sentence, however, the
government's motion and supporting brief contain no mention, no legal argument and
no proposed statements of fact specifically identified as undisputed that would indicate
that it seeks summary judgment on the merits. TRC, in its opposition to the motion to
dismiss, confessed confusion as to whether the government's motion to dismiss was
actually a jurisdictional motion or a motion for summary judgment on the merits and
chose to address both, with the caveat that the appeal was in its early stages prior to
either party conducting any discovery. (App. opp'n at 1, 4, 51)

        The government's motion to dismiss, as well as TRC's opposition and the
parties' further reply briefing, were all submitted prior to the 10 December 2014
decision of the Court of Appeals for the Federal Circuit in Sikorsky Aircraft Corp.
v. United States, 773 F .3d 1315 (Fed. Cir. 2014 ). In Sikorsky the Court held that the
CDA's six-year statute of limitations is not jurisdictional and, therefore, cannot
provide the basis to dismiss an appeal for lack of jurisdiction. Id. at 1320-22. Instead,
an allegation that a claim is time-barred is properly asserted in the pleadings as an
affirmative defense, 1 which is subject to a determination on the merits. Harris Corp.,
ASBCA No. 37940, 89-3 BCA ~ 22,145 at 111,460 (citing Do-Well Machine Shop,
Inc. v. United States, 870 F.2d 637, 639 (Fed. Cir. 1989)). The party asserting the
affirmative defense (moving party here) has the burden of proof in a subsequent merits
proceeding, whether that be a hearing or a motion for summary judgment. The Boeing
Co., ASBCA No. 54853, 12-1 BCA ~ 35,054 at 172,197. This burden of proof is the
opposite of the requirement under a motion to dismiss for lack of jurisdiction where
the proponent of jurisdiction (the nonmoving party) has the burden of proof.
Raytheon Missile Systems, ASBCA No. 58011, 13 BCA ~ 35,241at173,016;
Aries Marine Corp., ASBCA No. 37826, 90-1BCA~22,484; Reynolds v. Army
& Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988).

        After the Sikorsky decision, the Board ordered the parties to submit
supplemental briefs addressing the impact of the Sikorsky decision upon the
government's motion to dismiss. The government's supplemental brief acknowledged
that, after Sikorsky, a failure to meet the CDA's six-year statute of limitations was not
jurisdictional. The government's supplemental brief submitted in support of its
existing motion to dismiss, with no change in the caption and still relying on the
extensive proposed factual recitations in its original brief in support of the motion to
dismiss, for the first time affirmatively seeks summary judgment on the merits of its
affirmative defense that TRC's claims are time-barred. Even though the record before
us on the motion indicates that the parties have not yet conducted any discovery
(app. opp'n. at 1, 4, 51; app. supp. br. at 4), the government:



1
    The government asserted TRC's alleged failure to submit its claims within the
         six-year period as an affirmative defense (answer~ 12).

                                            2
              [S]ubmits that all known material evidence involving this
              appeal is already in the record. The evidence clearly
              reflects what [TRC] knew or should have known and
              when. There is no material fact, necessary for the
              disposition of the claim and/or claim items in dispute.

(Gov't supp. br. at 23) TRC vigorously opposes the government's "recast[ing]" of its
jurisdictional motion to dismiss into a motion for summary judgment on the merits as
beyond the scope of the Board's order to submit supplemental briefs on the subject of
the impact of Sikorsky on the government's existing motion to dismiss. TRC further
requests, should we determine that the government's "recast[ing]" of its motion to one
for summary judgment is appropriate, that TRC be permitted to conduct discovery and
that it then be given a proper opportunity to respond to the motion as one for summary
judgment.

        For reasons including the difference in the burden of proof stated above, it has
long been our precedent that briefing submitted in support of a motion to dismiss for
lack of jurisdiction will not necessarily be considered in rendering a decision on the
merits through summary judgment. Combat Support Associates, ASBCA Nos. 58945,
58946, 15-1BCAii35,923; Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA
ii 35,234; Aries Marine, 90-1BCAii22,484 (citing Do-Well Machine Shop, 870 F.2d
637 at 639-40) (a motion to dismiss for lack of jurisdiction may not be converted to a
motion for summary judgment)).

       Even if, arguendo, we were to accept the government's attempt in its
supplemental brief to change the substance of its motion to dismiss to a motion for
summary judgment, it is well established that disposition of an appeal on summary
judgment is premature in the absence of adequate discovery and development of the
record. "Under summary judgment procedures 'it is usually necessary for the
nonmoving party to have an adequate opportunity for discovery, and summary
judgment should not be granted where the nonmovant has been denied the chance to
discover information essential to its opposition."' Coronet Machinery Corp., ASBCA
Nos. 55645, 56899, 09-2 BCA ii 34,306 at 169,464 (quoting Environmental Chemical
Corp., ASBCA No. 54141, 05-1BCAii32,938 at 163,176); GAP Instrument Corp.,
ASBCA No. 55041, 06-2 BCA ii 33,375 at 165,458 ("an adequate opportunity for
discovery must usually precede summary judgment") (citing Burnside-Ott Aviation
Training Ctr., Inc. v. United States, 985 F.2d 1574, 1582 (Fed. Cir. 1993)).

        Also operating against the appropriateness of a motion for summary judgment
on the issue of when TRC's claims accrued and started the six-year statute of
limitations period, is the "should have been known" test of claim accrual which "has a
reasonableness component [based] upon what facts were reasonably knowable to the
claimant." Laguna Construction Company, ASBCA No. 58569, 14-1 BCA ii 35,618 at


                                           3
 174,459. Summary judgment is not normally appropriate where reasonableness and
subjective knowledge are facts at issue. MICICCS, Joint Venture, ASBCA No. 58242,
 14-1BCA~35,612 at 174,436; The Boeing Co., 12-1BCA~35,054 at 172,198. The
government's motion asserts specific dates upon which it argues the various
components of TRC's claim accrued for purposes of the six-year statute of limitations.
TRC disputes the claim accrual dates asserted by the government and offers
contradictory evidence in support of its opposition to the government's motion. TRC
also seeks discovery in order to develop the record more fully. After fully considering
the filings of both parties, we find numerous material facts in dispute which require us
to make findings of fact, either after a hearing or upon the filing of later motion(s) for
summary judgment based on a fully-developed record.

       For the foregoing reasons, we deny the government's motion to dismiss.

       Dated: 27 May 2015
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                                                !/ DIANA ~(DICKINSON

                                                    Adminiitrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals


I concur



~~~
Administrative Judge
                                                  RICHARD SHACKLEFORD
                                                  Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals

      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58137, Appeal of The
Ryan Company, rendered in conformance with the Board's Charter.

      Dated:


                                                  JEFFREY D. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals


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