Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00960-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS STATES ROOFING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-960C (Judge Bush)

DEFENDANT'S REPLY BRIEF Defendant, the United States, respectfully submits the following reply to the opposition to our motion to dismiss filed by States Roofing Corporation ("SRC").1 ARGUMENT In our motion to dismiss, we established that this Court lacks subject matter jurisdiction to consider SRC's complaint because SRC irrevocably elected to pursue the same cause of action at the Armed Services Board of Contract Appeals ("ASBCA" or "board"), which docketed the appeals prior to SRC's filing its complaint in this Court. In its response, SRC acknowledges the

election doctrine but argues that it does not apply in this case because "the ASBCA has not ruled on jurisdiction." (all caps in original). Pl. Res. 1

SRC's argument should be rejected.

SRC's argument ignores the fact that neither party has requested a decision from the board "ruling" on jurisdiction and,

"Pl. Res. ___" refers to SRC's response in opposition to our motion to dismiss. "Pl Res. Ex. A" refers to the document accompanying plaintiff's opposition. "A ___" refers to the appendix accompanying our motion to dismiss. "SA ___" refers to the appendix accompanying our reply brief.

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indeed, no such decision is necessary.

Here, the ASBCA has been

made aware of the exact jurisdictional issue that caused SRC to file its "protective" action in this Court. See Pl. Res. Ex. A

("The protective appeal pending in the United States Court of Federal Claims was discussed"). During a conference on November

3, 2005, the board requested, and the parties agreed to file, a joint statement regarding jurisdiction not later than November 16, 2005. Id.

In their November 16, 2005 joint statement, both parties "acknowledg[ed] the board's jurisdiction for the[] appeals." 106. Specifically, the parties stipulated: (1) the notices of appeal were timely; and (2) neither party questions the Board's jurisdiction to hear both of these appeals. A 107. Like the parties, the board also has given no indication that it believes it does not have jurisdiction to consider SRC's complaints.2 Indeed, the opposite is true. The board is A

proceeding with litigation of the SRC's claims and has set a trial scheduled to commence in April 2006. Indeed, subsequent to

the parties' November 16, 2005 joint statement on jurisdiction, the board issued an order again referencing the five-day hearing

Certainly, the board could, having been informed of the "protective" action filed here, address the issue of jurisdiction sua sponte, if it believed it did not have jurisdiction to consider SRC's complaints. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986). The board, of course, has not. 2

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that is scheduled to commence in April 2006.

SA 1.

The fact

that the board has not issued a written "determination" stating what obviously is its position does not somehow render inapplicable the election doctrine to the case pending in this Court. SRC's response again acknowledges that it currently has pending at the ASBCA appeals of the exact same claims brought in this Court, that SRC has filed complaints concerning those claims with the ASBCA, that the Government has answered those complaints, that the parties at the ASBCA have filed a joint statement acknowledging that jurisdiction is proper with the ASBCA, and that the parties currently are conducting discovery in the board case. Pl. Res. 1-2. Having elected to have its claims

considered by the ASBCA, it cannot maintain in this Court its parallel action. In its response, SRC argues that "the Government refused to stipulate that neither party would thereafter seek to challenge jurisdiction in that or any appellate action." (citing A 107). Pl. Res. 2

According to SRC, "[t]herefore, the parties

acknowledgement [sic] is not finally dispositive of the jurisdictional issue." mark. Counsel for the Government did not improperly "refuse" to stipulate that the Government would not challenge jurisdiction Pl. Res. 2. SRC's argument misses the

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upon appeal.

Indeed, Government counsel could not somehow waive

the Government's right to challenge jurisdiction, as lack of jurisdiction may not be waived. Rolls-Royce Ltd. v. United The

States, 176 Ct. Cl. 694, 702, 364 F.2d 415, 420 (1966). proper inquiry here is whether the board believes it has jurisdiction to consider SRC's claims. answer to that question is affirmative.

As discussed above, the

SRC cites National Neighbors, Inc. v. United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988), for the proposition that this Court should not dismiss SRC's complaint until the ASBCA issues a "determination . . . that it has jurisdiction over SRC's claim." Pl. Res. 2. SRC notes that, in National Neighbors, the

contractor filed an action in the Claims Court when "a question arose whether the filing of the Board appeal was timely." Res. 5. Pl.

In National Neighbors the Federal Circuit held that

dismissal of a complaint in the Claims Court was premature "[b]ecause, at the time the Claims Court dismissed for lack of jurisdiction National Neighbors' complaint, the board had not determined whether it had jurisdiction over National Neighbors' complaint." 839 F.2d at 1543. That is not the situation here.

As noted above, neither party contests the board's jurisdiction and, as such, neither party has requested that the board issue a "determination" regarding its jurisdiction. such, no "determination" is forthcoming. As

Instead, the parties

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are proceeding with discovery and the board has scheduled trial to commence in April 2006. Certainly, if the board believed

jurisdiction was not proper, SRC's claims would not be proceeding to trial at the board in two months. The fact that the board has

not issued a "determination" regarding jurisdiction, when no such determination has been requested, does not counsel in favor of allowing the action in this Court to remain pending indefinitely until, as SRC suggests, "the ASBCA makes a final jurisdictional determination." Pl. Res. 4.

A portion of the Federal Circuit's decision in National Neighbors quoted by SRC in its response is instructive on this issue. As noted by SRC, the Federal Circuit "summarized its

decision," stating, in part: The mere filing of a document, which does not mature into a "proceeding" on the merits, is not a viable election pursuant to the statute. Pl. Res. 7 (quoting 839 F.2d at 1543. Here, the documents filed by SRC at the ASBCA have "mature[d] into a `proceeding' on the merits." Discovery is SRC has

proceeding and a trial is schedule to commence in April.

made a viable election and SRC's claims will be decided by the ASBCA. SRC's attempt to maintain an action in this Court under

the guise that the board has not yet issued a "determination" regarding jurisdiction, should be rejected.

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CONCLUSION For these reasons, and the reasons set forth in our motion to dismiss, defendant respectfully requests that its motion be granted and that plaintiff's complaint be dismissed. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Bryant G. Snee BRYANT G. SNEE Assistant Director OF COUNSEL: DAVID KOMAN Department of the Navy s/ David B. Stinson DAVID B. STINSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St. Washington, D.C. 20530 Tele: (202) 307-0163 Fax: (202) 514-8624 Attorneys for Defendant

February 7, 2006

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CERTIFICATE OF FILING I hereby certify that on February 7, 2006, a copy of the foregoing "DEFENDANT'S REPLY BRIEF" AND "APPENDIX VOLUME FIVE (APPENDIX TO REPLY BRIEF)" were filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. may access this filing through the Court's system. s/ David B. Stinson DAVID B. STINSON Parties