     In the United States Court of Federal Claims
                                          No. 15-885C
                                     (Filed: July 22, 2016)

*****************************
                                                            Contract Disputes Act, 41 U.S.C.
                                                *
                                                            § 7101 et seq; Transfer; Time
NOVA GROUP/TUTOR-SALIBA, A Joint                *
                                                            Limit for Appealing Contracting
Venture,                                        *
                                                            Officer’s Decision; Time-Barred
                                                *
                                                            Appeal; Waiver of Sovereign
                    Plaintiff,                  *
                                                            Immunity.
                                                *
             v.                                 *
                                                *
THE UNITED STATES,                              *
                                                *
                    Defendant.                  *
                                                *
*****************************
      Gerald Scott Walters and Steven L. Reed, Smith Currie & Hancock, LLP, 2700 Marquis
One Tower, 245 Peachtree Center Avenue, NE, Atlanta, GA 30303, for Plaintiff.

       Benjamin C. Mizer, Robert E. Kirschman, Jr., Steven J. Gillingham, and Adam E. Lyons,
United States Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box
480, Ben Franklin Station, Washington, D.C. 20044, for Defendant.
     ______________________________________________________________________

     OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO TRANSFER
    ______________________________________________________________________

WILLIAMS, Judge.
        On May 31, 2016, Plaintiff filed an unopposed motion to transfer the above-captioned
case to the Armed Services Board of Contract Appeals (“ASBCA”) pursuant to 41 U.S.C. §
7107(d). Plaintiff represents that it presently has an appeal pending before the ASBCA arising
under the same contract at issue in this action. Because the claim pending in this Court would be
time-barred at the ASBCA and the claim pending in this Court involves wholly different facts
than the ASBCA claim, Plaintiff’s motion to transfer is denied.

                                         Background
        On May 2, 2008, the Naval Facilities Engineering Command (“NAVFAC”) awarded
Contract No. N44255-08-C-6000 for the design and construction of a ship repair wharf (“Pier
B”) at the Puget Sound Navy Shipyard in Bremerton, Washington to Plaintiff, Nova
Group/Tutor-Saliba. Nova Group/Tutor-Saliba v. United States, 125 Fed. Cl. 469, 470 (2016).
Although NAVFAC approved Plaintiff’s design submissions on November 12, 2009, the
project’s construction manager later questioned Plaintiff’s design on March 8, 2010. Id. In
response to the construction manager’s letter raising this design issue, Plaintiff stopped
construction and began a re-evaluation of the design, which lasted from March 8 until May 27,
2010. Id. at 471. As part of this re-evaluation, Plaintiff’s architect-engineer and designer of
record, KPFF Consulting (“KPFF”), hired an independent third-party designer, Ben C. Gerwick,
Inc. (“Gerwick”), to analyze KPFF’s original design. Id. Gerwick concluded that KPFF’s
design complied with the requirements of the contract and that KPFF had chosen an appropriate
design method. Id. Plaintiff resumed construction on May 27, 2010. Id. Upon resuming
construction, Plaintiff accelerated the remaining work, increasing manpower, equipment, and
overtime. Id.
        Two Requests for Equitable Adjustment (“REA”) are implicated in the instant motion - -
REAs 9 and 14. In REA 14, the subject of the suit in this Court, Plaintiff seeks compensation for
the work stoppage and acceleration stemming from the design re-evaluation in 2010. Plaintiff
stated:
       The Government issued Serial No. 0106, dated March 8, 2010 advising of Berger
       ABAM’s concerns that the final approved design may not be in conformance with
       the RFP . . . . The concern that the design was not in conformance with the RFP
       required all work on Pier B to be stopped until these issues were resolved. This
       delay impacted all Pier B work for several months and has required NTS to
       accelerate the falsework operation to mitigate the delay to the construction
       schedule.
Compl. Ex. 3, at 3.
       In REA 9, the subject of the appeal before the ASBCA, Plaintiff raises a differing site
condition claim, stating:
       REA #9 was assigned to differentiate the pile driving [Differing Site Condition]
       and related issues between the Mole, REA #5 and Pier B. After completion of the
       pile driving at the Mole Quay-wall, [American Civil Contractors], our pile driving
       subcontractor moved to the adjacent Pier B footprint and experienced the same or
       similar pile related problems at Pier B that it experienced at the Mole structure
       including inability to drive to design tip elevation and alignment issues, all caused
       by unknown subsurface conditions. Our design engineer attempted to mitigate the
       issue by modifying the driving criteria, just as Berger/ABAM did at the Mole. In
       both cases the criteria did not mitigate the uneven and variable elevations that
       would typically have been identified by the Indicator Pile Program. The extra
       scope of work includes the same elements as REA #5 but also includes additional
       scope including: engineering review and design changes, falsework modifications
       for bump-outs, reinforcing detailing and material changes, installation of 29
       additional piles and CIP crossbeams. This work is ongoing and all associated cost
       and schedule impacts are being compiled for inclusion into the REA.
Id. at 2. The contracting officer issued a final decision denying REA 14 on September 4, 2014,
and a final decision denying REA 9 on August 12, 2015. Pl.’s Mot. 3-4.



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        Plaintiff filed its complaint in this Court on August 17, 2015, appealing the contracting
officer’s final decision denying REA 14. On October 16, 2015, Defendant filed a motion to
dismiss Plaintiff’s complaint for failure to state a claim upon which relief could be granted,
arguing that Plaintiff failed to give timely written notice of its claim for constructive changes.
The Court denied Defendant’s motion on March 16, 2016, finding that Plaintiff’s failure to
timely provide written notice did not require dismissal of its complaint, as Plaintiff plausibly
alleged that Defendant had actual knowledge of Plaintiff’s work stoppage and acceleration.
Nova Group, 125 Fed. Cl. at 474. In the meantime, on November 4, 2015, Plaintiff appealed the
contracting officer’s denial of REA 9 to the ASBCA.
       On April 6, 2016, Defendant filed an unopposed motion to stay this action solely based
on Plaintiff’s representation that it was considering requesting a transfer to the ASBCA. On
April 15, 2016, Plaintiff filed a status report indicating that it was still assessing whether to file a
motion to transfer. On May 31, 2016, Plaintiff filed the instant motion to transfer, representing
that Defendant did not oppose a transfer.

                                             Discussion
        Plaintiff seeks to transfer the instant case to the ASBCA, or, in the alternative, to transfer
the case currently pending before the ASBCA to this Court.
        Plaintiff avers that because it did not timely file an appeal regarding REA 14 with the
Board, the ASBCA would not have jurisdiction over that appeal.1 Pl.’s Mot. 6-7 (“NTS had the
right to but did not timely file a Notice of Appeal with the ASBCA after receiving the CO’s final
decision denying NTS’s claim on REA 14. As such, the Board cannot now exercise jurisdiction
over a direct appeal since NTS failed to file an appeal within 90 days of the CO’s decision.”)
(internal citations omitted). Nonetheless, Plaintiff argues that this Court can bestow “derivative
jurisdiction” upon the ASBCA via a transfer, invoking Section 7107(d) of the Contract Disputes
Act (“CDA”). That provision states:
       If 2 or more actions arising from one contract are filed in the United States Court
       of Federal Claims and one or more agency boards, for the convenience of the
       parties or witnesses or in the interest of justice, the United States Court of Federal
       Claims may order the consolidation of the actions in that court or transfer any
       actions to or among the agency boards involved.
41 U.S.C. § 7107(d) (2012). While the referenced provision authorizes transfer, it does not
speak to the propriety of transferring a case that would be time-barred.



1
        The Contract Disputes Act requires that appeals to the Board be filed within 90 days of
receiving a contracting officer’s final decision. Section 7104 states that a “contractor, within 90
days from the date of receipt of a contracting officer’s decision . . . may appeal the decision to an
agency board . . .” or may appeal directly to the Court of Federal Claims “within 12 months from
the date of receipt of a contracting officer’s decision . . . .” 41 U.S.C. § 7104(a), (b)(3) (2012).
Plaintiff filed its appeal regarding REA 14 with this Court 11 months after the contracting officer
issued her final decision.
                                                   3
       Plaintiff argues that the Federal Circuit’s decision in Glenn v. United States, 858 F.2d
1577 (Fed. Cir. 1988), would permit transfer to the Board even though that claim would be time-
barred at the Board. In Glenn, the contracting officer issued a liability decision which Glenn
appealed to the ASBCA. The contracting officer subsequently issued a quantum decision, which
Glenn appealed to the Claims Court, as he was outside of the 90-day time limit to file with the
ASBCA. Glenn sought transfer from the Claims Court to the ASBCA, but the trial court denied
Glenn’s motion, finding that a failure to appeal the contracting officer’s final decision on
quantum within the 90-day deadline could not be cured by a transfer from the court to the board.
Id. at 1578-79. The Federal Circuit disagreed, finding that because the quantum decision
“supplemented” the liability decision, the ASBCA had jurisdiction over both appeals, despite
Glenn’s failure to appeal the quantum decision within 90 days. Id. at 1581.
        The Federal Circuit in Glenn articulated a narrowly circumscribed rule permitting
transfer to a forum where a supplement to a claim would be time-barred - - not the broad rule
Plaintiff attempts to construct here - - and emphasized the sui generis quality of Glenn. The
Court stated: “the unique circumstances of this case require that the Claims Court’s order be
vacated and the case be remanded to the Claims Court with instructions to transfer Glenn’s
appeal to the board, for consolidation with the appeal pending before that tribunal.” Id.
(emphasis added). The Court continued that even if the ASBCA determined that the quantum
decision did not supplement the liability decision, it “should nonetheless, in this particular and
unusual case, consolidate the two appeals” in order to “avoid the necessity of two tribunals
concurrently deciding appeals on interrelated issues and the possibility of inconsistent
decisions.” Id. (emphasis added). In Glenn, the quantum decision involved the same factual
circumstances as the liability decision and was a continuation of the liability decision, and
permitting adjudication of these two actions in different fora posed a risk of conflicting
decisions. Plaintiff is asking this Court to interpret Glenn, a “unique” and “unusual” case in a
manner that would greatly broaden its narrow holding and permit Plaintiff to circumvent the
statute of limitations governing appeals to the boards of contract appeals.
        Plaintiff suggests that the unusual outcome in Glenn would justify consolidating a
differing site condition claim with a wholly separate acceleration claim stemming from a work
stoppage due to a design re-evaluation. The claim before the Board - - REA 9 - - is not a
continuation of REA 14, as was the case in Glenn, but rather is an entirely separate claim, based
upon different occurrences, at a different time, seeking different relief. Unlike in Glenn, there is
no risk of inconsistent decisions here if the tribunals were to grant one appeal and deny the other,
as the claims do not involve the same facts or legal issues. In the claim underlying this action,
REA 14, Plaintiff seeks a $1,881,900 price adjustment due to the re-evaluation of Pier B’s pile
design and the subsequent acceleration of construction activities due to the work stoppage that
occurred during the March 8 to May 27, 2010 re-evaluation period. Pl.’s Mot. 3-4. In REA 9, a
differing site condition claim pending at the ASBCA, Plaintiff seeks a $10,498,284.85 price
adjustment for additional costs incurred in the design modification and construction of a subset
of Pier B’s piles, due to an unexpected subsurface condition in the ground contour of the site.
Pl.’s Mot. Ex. 2. Because the differing site condition claim at the Board involves wholly
separate factual and legal issues than the work stoppage claim pending at the Court, Glenn is
distinguishable and does not warrant transfer.



                                                 4
            The main impediment to transfer, however, is that this procedural tack would permit
    Plaintiff to pursue its work stoppage claim in a forum where that claim would be time-barred.
    Plaintiff contends that this Court has the authority to transfer this action even though it would
    have been time-barred at the Board. In so arguing, Plaintiff presumes that the 90-day time limit
    for filing at the Board is not jurisdictional. But that presumption may not be accurate, as the
    Federal Circuit has expressly reserved ruling on whether or not the filing deadline in the CDA is
    jurisdictional. See Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 1244,
    1252 (Fed. Cir. 2016) (stating that the court need not “decide whether compliance with the
    twelve-month filing period set out in section 7104(b)(3) is a jurisdictional requirement”).2
           It would not be prudent for this Court to transfer a case to a forum which might lack
    jurisdiction. In the event the CDA’s filing deadline is ultimately determined to be jurisdictional,
    transferring could have a deleterious effect as the Board would lack jurisdiction over the
    transferred claim and its decision would be a nullity. See Schmittling v. Dep’t of Army, 219
    F.3d 1332, 1337 (Fed. Cir. 2000) (stating that if a Board lacks jurisdiction, it “is without
    authority to decide the issues presented” and that without jurisdiction, “the Board’s decision on
    the merits of a petition is a nullity”); Nat’l Neighbors, Inc. v. United States, 839 F.2d 1539,
    1542 (Fed. Cir. 1988) (stating that an “untimely appeal to the board is an absolute nullity
    because the board lacks jurisdiction over such an appeal”); Cosmic Constr. Co. v. United States,
    697 F.2d 1389, 1390 (Fed. Cir. 1982) (finding that the 90-day deadline for a contractor to

2
        In Guardian Angels Medical Service Dogs, Inc., the court noted that the Supreme Court
recently stated that filing deadlines are ordinarily not jurisdictional, citing Sebelius v. Auburn
Regional Medical Center, 133 S. Ct. 817, 825 (2013), United States v. Kwai Fun Wong, 135 S.
Ct. 1625, 1632 (2015), and Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 439-42
(2011). 809 F.3d 1244, 1252 (Fed. Cir. 2016). The statute at issue in Auburn Regional Medical
Center, 42 U.S.C. § 1395oo(a)(3), states that a health care provider “may obtain a hearing” by
the Provider Reimbursement Review Board regarding reimbursement for services provided to
Medicare beneficiaries so long as the request is made within 180 days of a final determination by
government contractors known as fiscal intermediaries. Auburn Reg’l Med. Ctr., 133 S. Ct. at
824. The Court held that the provision “does not speak in jurisdictional terms,” and that
Congress’ choice of language did not reveal “a design to preclude any regulatory extension.” Id.
(internal citation and quotation marks omitted). Kwai Fun Wong involved the statute of
limitations for bringing a claim in district court under the Federal Tort Claims Act, 28 U.S.C. §
2401(b), and stated that in “enacting the FTCA, Congress . . . provided no clear statement
indicating that § 2401(b) is the rare statute of limitations that can deprive a court of jurisdiction.”
135 S. Ct. at 1629, 1632. Finally, Henderson addressed 38 U.S.C. § 7266(a), which states that a
veteran appealing a denial by the Board of Veterans’ Appeals must do so within 120 days of the
mailing of the Board’s final decision. 562 U.S. at 433-34. The Henderson Court held that this
deadline “does not have jurisdictional attributes,” as there was no evidence of Congressional
intent that the “provision was meant to carry jurisdictional consequences.” Id. at 441. The court
also noted its holding in Sikorsky Aircraft Corp. v. United States, which stated that the six-year
statute of limitations in Section 7103 of the CDA “does not create a jurisdictional bar” because it
“does not have any special characteristic that would warrant making an exception to the general
rule that filing deadlines are not jurisdictional.” Guardian Angels Med. Serv. Dogs, Inc., 809
F.3d at 1252 (internal citation and quotation marks omitted).


                                                    5
    appeal a contracting officer’s final decision is “part of a statute waiving sovereign immunity,
    which must be strictly construed, and which defines the jurisdiction of the tribunal, here the
    [ASBCA]”) (internal citations omitted); Gregory Lumber Co. v. United States, 229 Ct. Cl. 762,
    763 (1982) (finding that Congress set a 12-month limit for a contractor to appeal a contracting
    officer’s final decision in this Court, thus “this court cannot and should not read into it
    exceptions and tolling provisions Congress did not contemplate or authorize”) (internal citation
    omitted); Jacobs Eng’g Grp., Inc. v. United States, 75 Fed. Cl. 752, 760 n.9 (2007); States
    Roofing Corp. v. United States, 70 Fed Cl. 299, 300 (2006) (stating that the 90-day period for
    appealing to the Board is a jurisdictional limitation that may not be waived); Olsberg
    Excavating Co. v. United States, 3 Cl. Ct. 249, 252 (1983).3
        Finally, the practical reason Plaintiff constructs to support transfer is not persuasive.
Plaintiff argues that the appeal proceeding before the ASBCA, filed two and a half months after
this suit, and spawning no published decision, “has progressed further” than the lawsuit
proceeding before this Court. Pl.’s Mot. 15 (stating that the appeal pending before the ASBCA
“is proceeding at a much faster clip,” as Plaintiff has already filed its complaint in that appeal,
Defendant has submitted its Rule 4 submission and answer to the complaint, written discovery
has been served by both parties, and fact discovery is anticipated to close by November 30,
2016); see Nova Group, 125 Fed. Cl. at 474. Even accepting Plaintiff’s suggestion that its Board
appeal is farther along than this action, that circumstance is wholly due to Plaintiff’s own
procedural tacks in both fora.4 Plaintiff represented that it wished to stay proceedings in this
Court in order to determine whether it would seek to transfer this matter to the ASBCA. See
Def.’s Mot. to Stay 1; Pl.’s Status Report 1. Although Defendant ultimately requested the stay
on April 6, 2016, because it had a filing deadline, the sole reason supporting the request was
Plaintiff’s deliberations over whether it would seek a transfer. Def.’s Mot. to Stay 1. Written
discovery completed at the Board can be used in this proceeding as appropriate.
        In short, the procedural posture of these matters especially at this early stage should not
be used to effect an end run around a filing deadline that may be jurisdictional. In any event, the
alternative relief Plaintiff requested can achieve Plaintiff’s goal of resolving these appeals in a
single forum. As such, the Court grants Plaintiff’s alternative request to transfer the ASBCA
case to this Court where there is no timeliness issue.



3
       Plaintiff also relies on Southwest Marine, Inc. on Behalf of Universal Painting &
Sandblasting Corp. v. United States, 680 F. Supp. 327 (N.D. Cal. 1988), decided nine months
before Glenn. In Universal Painting, the plaintiff sought transfer to the ASBCA of a case that
would have been time-barred before the Board. The district court permitted transfer, interpreting
the CDA to allow transfer of “any” case, not only those filed within 90 days. The district court
noted that neither party was able to provide either a court or Board decision resolving the
question of whether a Board could accept a transfer of a time-barred case. Universal Painting is
not binding, and this Court declines to adopt its rationale in light of Guardian Angels Medical
Service Dogs, Inc., Cosmic Construction and its progeny, and the uncertainty surrounding
whether the CDA’s 90-day and 12-month filing deadlines are jurisdictional.
4
          The same counsel represents Plaintiff at the ASBCA and in this action.

                                                  6
                                          Conclusion
       Plaintiff’s motion to transfer the instant action to the Armed Services Board of Contract
Appeals is DENIED, and Plaintiff’s alternative request to transfer the ASBCA appeal to this
Court is GRANTED.
       Pursuant to 41 U.S.C. § 7107(d), Plaintiff’s pending appeal before the ASBCA, No.
60312, shall be transferred to this Court and consolidated with Plaintiff’s claim pending before
this Court in the above-captioned case. The Clerk shall serve a copy of this order on the Acting
Chairman of the ASBCA.
       The Court will convene a telephonic status conference on September 15, 2016, at 11:00
a.m. E.D.T. The Court will initiate the call.



                                                   s/Mary Ellen Coster Williams
                                                   MARY ELLEN COSTER WILLIAMS
                                                   Judge




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