               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Public Warehousing Company, K.S.C.           )      ASBCA No. 59020
                                             )
Under Contract Nos. SP0300-03-D-306 l        )
                    SPM300-05-D-3119         )
                    SPM300-05-D-3128         )

APPEARANCES FOR THE APPELLANT:                      Michael R. Charness, Esq.
                                                    Jamie F. Tabb, Esq.
                                                    Ralph C. Mayrell, Esq.
                                                     Vinson & Elkins LLP
                                                     Washington, DC

APPEARANCES FOR THE GOVERNMENT:                     Daniel K. Poling, Esq.
                                                     DLA Chief Trial Attorney
                                                    John F. Basiak Jr., Esq.
                                                    Keith J. Feigenbaum, Esq.
                                                    Kari L. Scheck, Esq.
                                                    Steven Herrera, Esq.
                                                     Trial Attorneys
                                                     DLA Troop Support
                                                     Philadelphia, PA

   OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON APPELLANT'S
   REQUEST TO LIFT STA Y OF THIS APPEAL AS TO ITS CLAIMS AND TO
      CERTIFY THE BOARD'S 12 JANUARY 2017 ORDER FOR APPEAL

       Appellant, Public Warehousing Company, K.S.C. (PWC) moves to lift the stay
with respect to its affirmative claims and to certify the Board's 12 January 2017 order
for appeal. The government opposes.

       We recently addressed all of PWC's contentions in Public Warehousing Company,
K.S.C., ASBCA No. 57510, 2017 WL 1277009 (21March2017) (No. 57510), and Public
Warehousing Company, K.S.C., ASBCA No. 58088, 17-1 BCA ~ 36,689 (No. 58088).
Our reasoning is set forth in those opinions and we will not repeat it at length. With
respect to PWC's request that we allow its affirmative claims to proceed (but continue the
stay for the government's affirmative defenses), we held in No. 57510 that this was not
an appropriate way to proceed due to the difficulty in preventing discovery from delving
into subjects involved in the criminal case pending against PWC in the U.S. District
Court for the Northern District of Georgia. Nor did we view a hearing in which we could
not consider the government's affirmative defenses to be an efficient use of our
resources.

       With respect to certifying our 12 January 2017 order for appeal to the Court of
Appeals for the Federal Circuit, we explained at length in No. 58088 that we do not
possess authority to certify interlocutory decisions for appeal. PWC faults us,
however, for not addressing the opinion of the Court of Appeals for the Federal Circuit
in AAA Engineering & Drafting, Inc. v. Widnall, 129 F.3d 602 (Fed. Cir. 1997).

        In AAA Engineering, the Federal Circuit addressed whether a Board decision
that decided entitlement but remanded to the parties to negotiate quantum was
appealable. The court of appeals held that our opinion was not final and therefore not
appealable. The court of appeals also contrasted this result with another opinion in
which it had determined that our decision was sufficiently final to appeal because we
had granted summary judgment to the government on a sovereign acts defense, an
issue that the court found to be separate and distinct from the issues remaining before
the Board. Id. at 604-05 (citing Orlando Helicopter Airways, Inc. v. Widnall, 51 F .3d
258 (Fed. Cir. 1995)). Because our decision to stay this appeal for one year could not
be deemed a final decision by any stretch of the imagination, neither AAA Engineering
nor Orlando Helicopter provides any help to PWC.

        Nevertheless, PWC finds support in AAA Engineering in a footnote in which the
Federal Circuit distinguished that case from classes of cases in which Congress had
created a waiver to the finality rule, citing 28 U.S.C. § 1292(a)(l) (injunctions),§ 1292(b)
(certified appeals), and § 1292(c) (patent infringement cases). AAA Engineering, 129 F .3d
at 605 n.*. None of these statutes apply to the Board, however, and in the text leading up
to the footnote, the court of appeals emphasized '"the historic requirement for finality,
expressly imposed by Congress" that applied to the Board. The court declined to rule that
this requirement was subject to individual exception and waiver. Accordingly, we find no
support in this footnote for PWC's position.

                                    CONCLUSION

       PWC's motion is denied.

       Dated: 2 May 201 7


                                                  MICHAEL N. O'CONNELL
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals
(Signatures continued)


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 I concur                                       I concur


      -~/                    --~/                ~··
 MARK~~~i2[>···.                                RICHARD SHACKLEFORD
 Administrative Judge                           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. 59020, Appeal of Public
Warehousing Company, K.S.C., rendered in conformance with the Board's Charter.

      Dated:



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




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