Agility Logistics Servs. Co. KSC v. Mattis , 887 F.3d 1143 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
AGILITY LOGISTICS SERVICES COMPANY KSC,
Appellant
v.
JAMES N. MATTIS, SECRETARY OF DEFENSE,
RYAN D. MCCARTHY, ACTING SECRETARY OF
THE ARMY,
Appellees
______________________
2015-1555
______________________
Appeal from the Armed Services Board of Contract
Appeals in Nos. 57415, 57416, 57417, 57418, 57419,
57420, 57421, 57422, 57423, 57424, 57425, 57426, 57895,
57896, 57897, 57898, 57899, 57900, 57901, 57902, 57903,
57904, 57905, 57906, 57907, Administrative Judge Jack
Delman.
______________________
Decided: April 16, 2018
______________________
JOHN PATRICK ELWOOD, Vinson & Elkins LLP, Wash-
ington, DC, argued for appellant. Also represented by
MICHAEL CHARNESS, JOSHUA STEPHEN JOHNSON.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for appellees. Also
2 AGILITY LOGISTICS SERVICES v. DEFENSE
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., CLAUDIA BURKE.
______________________
Before PROST, Chief Judge, LOURIE and CHEN,
Circuit Judges.
PROST, Chief Judge.
This is an appeal from a decision of the Armed Ser-
vices Board of Contract Appeals (“Board”) dismissing for
lack of jurisdiction. The Board found that the Contract
Disputes Act of 1978 (“CDA”), 41 U.S.C. §§ 7101–7109,
does not provide it with jurisdiction in this case. We
agree and affirm the Board’s decision in that regard. The
Board also found that it lacked jurisdiction under its
charter. Because that decision was not made pursuant to
the CDA, we lack jurisdiction to review it. We therefore
affirm in part and dismiss in part.
BACKGROUND
I
In 2003, the United States and its coalition partners
created the Coalition Provisional Authority (“CPA”) to
rule in Iraq pending transfer of that authority to a newly
constituted Iraqi government. J.A. 1–2; see id. at 318–19.
On June 6, 2004, the CPA awarded appellant Agility
Logistics Services Company KSC (“Agility”) the contract
at issue (the “Contract”). 1 See J.A. 598–671. Agility’s
1 In its opening brief, Agility purported to be a
company organized under Kuwaiti law, and it asserted
that the Contract was awarded to Agility under its former
name, Public Warehousing Company KSC (“PWC”).
Appellant’s Br. 3 & n.1. After filing the opening brief,
however, Agility’s counsel notified this court that he had
since learned that the current name of the entity formerly
AGILITY LOGISTICS SERVICES v. DEFENSE 3
scope of work under the Contract was to “establish and
operate two distribution center warehouses and staging
areas as part of a supply chain management system
supporting the reconstitution of Iraqi security forces, and
for the reconstruction support of Iraq civil infrastructure.”
J.A. 2 (citing J.A. 603). The Contract provided for the
issuance of task orders setting forth specific work re-
quired. J.A. 604.
The Contract also specified that “[t]he obligation un-
der this contract is made with Iraqi funds, as defined in
CPA Memorandum [No.] 4 . . . . No funds, appropriated
or other, of any Coalition country are or will be obligated
under this contract.” J.A. 3–4 (quoting J.A. 670). The
CPA’s Memorandum No. 4 defined “Iraqi funds” to include
known as PWC is actually Agility Public Warehousing
Company KSCP. ECF No. 18 at 2. We remanded for the
limited purpose of allowing the Board to determine the
real party in interest and the impact of that determina-
tion on its decision. ECF No. 32 at 4.
On remand, the Board acknowledged the parties’
agreement that “[Agility] has never existed” and clarified
that “[Agility] is not the contractor.” J.A. 2867. The
Board also confirmed that the identity of the real party in
interest did not impact its dismissal for lack of jurisdic-
tion. J.A. 2869. But, citing concerns over the application
of Iraqi law, the Board did not determine whether Agility
Public Warehousing Company KSCP is the real party in
interest here. J.A. 2868–69.
The government now argues that because the named
appellant “never existed,” Agility faces additional jurisdic-
tional problems such as lack of standing. See Appellee’s
Br. 53–57. Because we affirm the Board’s decision on
other grounds, we do not reach these issues. We continue,
however, to refer to appellant as Agility throughout this
opinion.
4 AGILITY LOGISTICS SERVICES v. DEFENSE
funds from the Development Fund for Iraq (“DFI”). 2
J.A. 340 ¶ 8.
The Contract further required Agility to acknowledge
the impending transfer of authority and the CPA’s sched-
uled dissolution:
[Agility] hereby recognizes that a transfer of au-
thority (TOA) from the [CPA] to the interim Iraqi
Governing Council is scheduled to take place
June 30, 2004. Furthermore, [Agility] recognizes
that upon the TOA on June 30, 2004, or upon any
later TOA date if delayed, the CPA is dissolved.
The CPA, U.S. Government or Coalition Govern-
ment will not be liable to the contractor for any
performance undertaken after the TOA.
J.A. 671.
II
In preparation for the transfer of authority to the Ira-
qi Interim Government (“IIG”), the CPA issued Memoran-
dum No. 15 in mid-June 2004. J.A. 370–71.
Memorandum No. 15 allowed the IIG Minister of Finance
to delegate “responsibility to monitor and confirm perfor-
mance, certify and/or make payments, and otherwise
administer contracts or grants funded with monies from
the [DFI].” J.A. 370. The memorandum allowed the IIG
to delegate these responsibilities to the CPA’s Program
Management Office (“PMO”) or, “following the transfer of
full governance authority to the [IIG], the Chief of Mis-
sion of the United States Embassy, Baghdad and/or the
Commander of the Multi-National Force-I.” Id.
2 The DFI was a fund administered by the CPA and
composed of various sources, including revenue from sales
of Iraqi petroleum and natural gas.
AGILITY LOGISTICS SERVICES v. DEFENSE 5
On June 15, 2004, the IIG Minister of Finance dele-
gated contract-administration responsibility concerning
DFI-funded contracts to the PMO. J.A. 373a–75a; see id.
at 5–6. The delegation did “not authorize [the PMO] to
terminate, amend, or novate any contracts or grants”
covered by the delegation. J.A. 374a. It further stated:
The powers, privileges, rights and authorities
granted to [the PMO] under this designation may
be further delegated. They shall transfer to the
Chief of Mission of the United States Embassy
Baghdad and the Commander of the Multi-
National Force-I on June 30, 2004, both of whom
shall also have the authority to delegate these
powers, privileges, rights, and activities further.
Id.; see id. at 6.
Four days later, on June 19, 2004, Task Order No. 3
issued under the Contract. Unlike the first two task
orders, Task Order No. 3 obligated U.S. funds. J.A. 803.
On or about June 28, 2004, the CPA dissolved and
sovereignty transferred from the CPA to the IIG. J.A. 5.
In accordance with the IIG Minister of Finance’s June 15,
2004 memorandum, the PMO’s contract-administration
authority transferred to the Chief of Mission of the United
States Embassy Baghdad and the Commander of the
Multi-National Force-I effective June 30, 2004. J.A. 6–7.
Following the CPA’s dissolution, contract-
administration authority was further delegated to the
Project and Contracting Office (“PCO”), a temporary
organization within the Department of Defense that later
became part of the Department of the Army. J.A. 7. On
July 24, 2004, the PCO issued a memorandum providing
its understanding of its authority under the IIG Minister
of Finance’s June 15, 2004 memorandum, stating:
In accordance with the Ministry of Finance’s let-
ter[,] dated 15 June 2004, the [PCO] will continue
6 AGILITY LOGISTICS SERVICES v. DEFENSE
to monitor and confirm performance, certify
and/or make payments, and otherwise administer
contracts or grants financed by [the DFI] and
awarded under the former [CPA]. The delegation
letter does not grant us the authority to award,
terminate, amend, or novate any contracts or
grants under that delegation.
J.A. 7 (quoting J.A. 458). 3
Several task orders issued under the Contract
through December 2007. Of these, Task Order Nos. 3, 6,
9–12, and 14–20 (collectively, the “Task Orders”) are at
issue in this appeal. Each of the Task Orders obligated
U.S. funds.
III
In September 2010, after a period of negotiations be-
tween the parties, a U.S. contracting officer (“CO”) issued
final decisions regarding each of the Task Orders. The
CO determined that Agility owed the government almost
$81 million due to the government’s overpayment. Agility
appealed all but one of these decisions to the Board.
Separately, in April 2011, Agility submitted a certi-
fied claim to the CO seeking approximately $47 million
for unpaid fees on the Task Orders. The CO denied the
claim, and Agility appealed that decision to the Board as
well.
The government moved to dismiss the appeals for lack
of jurisdiction. Agility opposed the motion and argued
that the Board had jurisdiction under the CDA, or alter-
natively under the Board’s charter.
3 The Joint Contracting Command-
Iraq/Afghanistan (“JCC”), a U.S. Army component, later
handled contract-administration responsibilities.
AGILITY LOGISTICS SERVICES v. DEFENSE 7
The Board rejected Agility’s arguments and dismissed
the appeals for lack of jurisdiction. J.A. 1–15. The Board
first observed that its CDA jurisdiction was limited to
contracts “made by an ‘executive agency.’” J.A. 9 (citing
41 U.S.C. §§ 7101(8), 7102(a)). Board precedent held that
the CPA was not an executive agency within the meaning
of the CDA. Because the CPA undisputedly awarded the
Contract, and because the Board found that the IIG
assumed responsibility over the Contract as of the IIG’s
June 15, 2004 memorandum, the Board determined that
it would lack CDA jurisdiction absent some showing that
the Contract was novated or assigned to an executive
agency. Id. The Board found no evidence of such a nova-
tion or assignment. Rather, it found that the government
acted as a contract administrator, not as a contracting
party. Id. at 9–10. Thus, the Board concluded that it
lacked jurisdiction under the CDA. Id. at 11. In a sepa-
rate discussion, the Board concluded that it lacked juris-
diction under its charter. Id. at 11–12.
Agility timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(10).
DISCUSSION
Whether the Board has jurisdiction over Agility’s
claims is a question of law we review de novo. E.g.,
Arnold M. Diamond, Inc. v. Dalton, 25 F.3d 1006, 1010
(Fed. Cir. 1994).
Contract interpretation is also a question of law we
review de novo, though we give the Board’s interpretation
of government contracts careful consideration given its
considerable experience and expertise. Interstate Gen.
Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed.
Cir. 1992). Whether a contract existed between Agility
and the government is a mixed question of law and fact.
Estes Express Lines v. United States, 739 F.3d 689, 693
(Fed. Cir. 2014). And the Board’s fact findings are final
unless “fraudulent, arbitrary, or capricious,” “so grossly
8 AGILITY LOGISTICS SERVICES v. DEFENSE
erroneous as to necessarily imply bad faith,” or “not
supported by substantial evidence.” 41 U.S.C. § 7107(b).
As it did before the Board, Agility argues that the
Board had jurisdiction under the CDA and the Board’s
charter. We address these arguments in turn.
I
The CDA applies to contracts “made by an executive
agency,” 41 U.S.C. § 7102(a), and gives the Board jurisdic-
tion to decide appeals of contracting officer decisions
relating to such contracts, see id. § 7105(e)(1)(A). There-
fore, to determine whether the Board had jurisdiction
under the CDA, we must decide whether the Contract was
“made by” an executive agency. We conclude that it was
not.
The Contract’s plain language compels our conclusion.
The Contract’s first page confirms that the CPA awarded
the Contract, J.A. 598, and Agility does not contend that
the CPA is an “executive agency” within the meaning of
the CDA. 4 Agility nevertheless presents several theories
as to why the Contract—or, at least, each of the Task
Orders—was made by an executive agency.
A
First, Agility contends that the IIG never assumed re-
sponsibility over the Contract. Though not entirely clear
from its briefing, Agility’s argument seems to be: given
that the CPA dissolved, if the IIG never assumed respon-
sibility over the Contract, the government must have
emerged as the contracting party.
4 Although Agility suggests that the CPA issued
Task Order No. 3 in its “capacity as an entity of the
United States Government,” Appellant’s Br. 40, Agility
does not contend that, when the CPA awarded the Con-
tract, it did so as an “executive agency.”
AGILITY LOGISTICS SERVICES v. DEFENSE 9
In support of its position, Agility argues that Task
Order No. 3 “effectively amended” the Contract to permit
obligation of U.S. funds. And, it contends, because the
transfer-of-authority memoranda (i.e., the CPA’s Memo-
randum No. 15 and the IIG’s June 15, 2004 memoran-
dum) both concerned only DFI-funded contracts, neither
implicated the Contract. Agility thus concludes that the
IIG never assumed authority over the Contract.
Agility’s argument mistakes the order of events. The
CPA awarded the Contract on June 6, 2004. At that time,
the Contract was DFI-funded. On June 15, 2004, the IIG
assumed responsibility over DFI-funded contracts and
delegated contract-administration responsibility to the
PMO, consistent with the authority granted by the CPA’s
Memorandum No. 15. Task Order No. 3 did not issue
until June 19, 2004—four days after the IIG assumed
responsibility over DFI-funded contracts. When responsi-
bility over DFI-funded contracts transferred from the
CPA to the IIG, the Contract was DFI-funded. The IIG
therefore assumed responsibility over the Contract.
Agility next directs us to the parties’ conduct. It ar-
gues that, “[e]ven if the [Contract] and the [Task Orders]
were ambiguous regarding the [government’s] contractual
privity with Agility,” the conduct of Agility, the IIG, and
the government “definitively resolve[s]” any such ambigu-
ity. Appellant’s Br. 27. But we resort to extrinsic evi-
dence to interpret a contractual provision only if that
provision is ambiguous. E.g., McAbee Constr., Inc. v.
United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996).
Agility has not demonstrated that the Contract was
ambiguous as to the identity of the contracting parties.
The Contract clearly stated that the CPA awarded the
Contract to Agility. J.A. 598. And, as described above,
the IIG assumed responsibility over the Contract pursu-
ant to memoranda issued as the CPA was preparing for
dissolution.
10 AGILITY LOGISTICS SERVICES v. DEFENSE
Even if we were to consider the parties’ conduct, it
would not alter our conclusion. Agility argues that the
government’s actions such as issuing and amending task
orders “cannot be squared with the notion that the [gov-
ernment] was acting as a mere ‘agent’ of the [IIG].”
Appellant’s Br. 29–30. We agree with the government
and the Board, however, that the PCO acted as a contract
administrator for the IIG—which is the role the PCO
explicitly understood itself to be in. J.A. 7 (citing
J.A. 458); id. at 9–10.
Agility’s main contention concerning the parties’ con-
duct is that the government exceeded the IIG’s delegation
of authority in several ways, such that it would be “im-
plausible” to consider the government an agent of the IIG
and not a party itself to the Contract or Task Orders.
Appellant’s Br. 32; see id. at 28, 30. Agility’s argument
seems to assume that if an agent acts outside the scope of
its authority, the agent becomes (or is really) a contract-
ing party. Agility supplies no legal authority for this
proposition. In fact, although Agility cites the Restate-
ment (Third) of Agency, Appellant’s Br. 32, the Restate-
ment acknowledges that “the fact that an agent acted
without power to subject the principal to liability does not
make the agent a party to the contract. This is because
an agent who only purports to bind a disclosed principal
to a contract does not promise to render any of the per-
formance purportedly required from the principal.”
Restatement (Third) of Agency § 6.01 cmt. b (Am. Law
Inst. 2006). 5 Therefore, even assuming for the sake of
5 Id. § 6.10 cmt. b (“[A]n agent does not become a
party to a contract made on behalf of a disclosed principal
unless the agent so agrees with the third party. Thus, if
the principal on whose behalf the agent purports to act is
not bound by a contract because the agent acted without
actual or apparent authority, the third party may not
AGILITY LOGISTICS SERVICES v. DEFENSE 11
argument that the government exceeded its delegation of
authority in certain respects, we see no reason to depart
from our conclusion—compelled by the Contract’s plain
language—that the government was not a contracting
party.
The issue before us is whether the Contract was
“made by” an executive agency. For the foregoing rea-
sons, we conclude that it was not.
B
Agility next focuses on the Task Orders individually.
It contends that each Task Order was a discrete contract
made by an executive agency.
Agility relies on Kingdomware Technologies, Inc. v.
United States, 136 S. Ct. 1969 (2016), for the proposition
that each Task Order constituted a discrete contract. In
Kingdomware, the Court considered whether the Depart-
ment of Veterans Affairs (“DVA”) must use the “Rule of
Two” provision of 38 U.S.C. § 8127(d) every time it awards
contracts. Id. at 1973. The DVA argued that § 8127(d)
did not apply to “orders” issued under preexisting Federal
Supply Schedule (“FSS”) contracts. 6 The Court rejected
that argument, finding that when the DVA places an FSS
order, that order is a “‘contract’ within the ordinary
meaning of that term.” Id. at 1978.
subject the agent to liability on the contract unless the
agent agreed to become a party.” (citation omitted)).
6 As the Court noted, the FSS “generally is a
streamlined method for Government agencies to acquire
certain supplies and services in bulk, such as office sup-
plies or food equipment,” and “FSS contracts are ordinari-
ly pre-negotiated between outside vendors and the
General Services Administration, which negotiates on
behalf of various government agencies.” Id. at 1974
(citations omitted).
12 AGILITY LOGISTICS SERVICES v. DEFENSE
Even assuming, however, that each Task Order under
this Contract constituted a discrete contract, such con-
tracts were not “made by” an executive agency.
Agility argues that the “Issued By” block on the Task
Orders indicates they were made by an executive agency.
Agility correctly notes that Task Order Nos. 6, 11–12, and
14–20 say they were issued by the PCO or the JCC. And
although Task Order Nos. 9 and 10 say they were issued
by the CPA, Agility observes that these Task Orders
issued months after the CPA dissolved, suggesting that
the PCO actually issued them. But Task Order No. 3
identifies the CPA as the issuer and issued before the
CPA dissolved. Undiscouraged, Agility contends that the
CPA was really acting as a U.S. executive agency when
issuing this particular Task Order.
Initially, we note that neither party disputes the
Board’s finding that under these circumstances “the name
appearing in [the ‘Issued By’ block] had little, real signifi-
cance.” J.A. 10. But even if we assume that an executive
agency issued each of the Task Orders, that does not
mean that an executive agency was a party to the Task
Orders.
Agility again relies on Kingdomware in arguing that
the Task Orders “created discrete contractual obligations
for the government agency that issued them, not for the
entity that made the umbrella contract against which the
orders were made.” Appellant’s Reply Br. 15; see King-
domware, 136 S. Ct. at 1978 (“When the [DVA] places an
FSS order, that order creates contractual obligations for
each party and is a ‘contract’ within the ordinary meaning
of that term.”).
We do not read Kingdomware to broadly hold that the
issuer of any task order under any contract renders the
issuer a party to the task-order-as-contract, regardless of
the circumstances. Unlike here, for example, there was
no indication in Kingdomware that the DVA’s involve-
AGILITY LOGISTICS SERVICES v. DEFENSE 13
ment in the contracting was solely as a contract adminis-
trator for another party—much less for a foreign govern-
ment.
Consistent with our earlier conclusion, we find that
even if an executive agency issued the Task Orders, it did
so as a contract administrator and not as a contracting
party. Thus, the Task Orders were not “made by” an
executive agency as required by the CDA.
C
Agility finally argues that the Contract was novated
to make the government a party—if not to the Contract,
then at least to the Task Orders. We reject this argu-
ment.
A novation is a “substituted contract that includes as
a party one who was neither the obligor nor the obligee of
the original duty.” Restatement (Second) of Contracts
§ 280 (Am. Law Inst. 1981). “Assent of . . . the obligor of
the new duty is always necessary.” Id. § 280 cmt. c; see 30
Richard A. Lord, Williston on Contracts § 76:11 (4th ed.
2004) (observing “the agreement of all the parties to the
new contract” or “consent of all the parties” as a required
element of a novation); accord Hicks v. United States, 89
Fed. Cl. 243, 257 (2009).
Agility’s novation theory is that it discharged the
CPA’s and IIG’s obligation to pay in exchange for the
government’s promise to pay. But this theory is essential-
ly just a reformulation of Agility’s previous arguments.
For example, Agility argues that the government demon-
strated its intent to become a contracting party (in a
novated contract) by allegedly exceeding its delegation of
authority from the IIG and issuing the Task Orders. For
reasons already discussed, we find that these acts do not
show that the government was, or intended to be, a con-
tracting party.
14 AGILITY LOGISTICS SERVICES v. DEFENSE
At bottom, Agility simply has difficulty pointing to a
deal it had with the government as a party, and not as an
agent. Agility’s difficulty is especially hard to overlook in
this case, where the Contract says:
The . . . U.S. Government . . . will not be liable to
[Agility] for any performance undertaken after
the [transfer of authority].
J.A. 671 (emphasis added).
We conclude that no novation rendered the govern-
ment a party to the Contract or the Task Orders. We
further conclude, for the foregoing reasons, that the Board
lacked jurisdiction under the CDA because neither the
Contract nor the Task Orders were made by an executive
agency. We therefore affirm the Board’s dismissal for
lack of CDA jurisdiction.
II
Agility also argues that the Board had jurisdiction
under its charter. 48 C.F.R. ch. 2, app. A, pt. 1. The
Board decided it did not. And because that Board deci-
sion was not made pursuant to the CDA, we lack jurisdic-
tion to review it.
Under 28 U.S.C. § 1295(a)(10), our jurisdiction over
Board decisions extends only to decisions made pursuant
to the CDA. N. Am. Corp. v. United States, 706 F.2d
1212, 1213 (Fed. Cir. 1983); see also G.E. Boggs & Assocs.
v. Roskens, 969 F.2d 1023, 1026 (Fed. Cir. 1992); Zinger
Constr. Co. v. United States, 753 F.2d 1053, 1054 (Fed.
Cir. 1985). Agility acknowledges this precedent but
argues that a 2011 amendment to § 1295(a)(10) changed
our jurisdiction over Board decisions, superseding the
precedent cited above. We disagree.
Before the referenced amendment, § 1295(a)(10) gave
this court jurisdiction “of an appeal from a final decision
of an agency board of contract appeals pursuant to section
AGILITY LOGISTICS SERVICES v. DEFENSE 15
8(g)(1) of the Contract Disputes Act of 1978 (41 U.S.C.
607(g)(1)).” 28 U.S.C. § 1295(a)(10) (2006) (emphasis
added) (version in effect from October 1982 to January
2011). In 2011, however, Congress removed the under-
lined language and replaced it with “section 7107(a)(1) of
title 41.” Public Contracts Act, Pub. L. No. 111-350, sec.
5(g)(5)(A), 124 Stat. 3677, 3848 (2011). The text of section
8(g)(1) of the CDA is substantively identical to that of 41
U.S.C. § 7107(a)(1). 7 This observation comports with the
7 Section 8(g)(1) of the CDA states:
The decision of an agency board of contract ap-
peals shall be final, except that—(A) a contractor
may appeal such a decision to the Court of Claims
within one hundred twenty days after the date of
receipt of a copy of such decision, or (B) the agency
head, if he determines that an appeal should be
taken, and with the prior approval of the Attorney
General, transmits the decision of the board of
contract appeals to the United States Court of
Claims for judicial review, under section 2510 of
title 28, United States Code, as amended herein,
within one hundred and twenty days from the
date of the agency’s receipt of a copy of the board’s
decision.
Contract Disputes Act of 1978, Pub. L. No. 95-563,
§ 8(g)(1), 92 Stat. 2383, 2387 (1978). In 1982, Congress
replaced references to the Court of Claims in the above-
quoted text with references to this court. Federal Courts
Improvement Act of 1982, Pub. L. No. 97-164, sec. 156, 96
Stat. 25, 47 (1982).
Section 7107(a)(1) of title 41 states:
IN GENERAL.—The decision of an agency board is
final, except that—(A) a contractor may appeal
the decision to the United States Court of Appeals
16 AGILITY LOGISTICS SERVICES v. DEFENSE
2011 Act’s schedule indicating that section 8(g)(1) of the
CDA (previously codified at 41 U.S.C. § 607) would be
recodified at 41 U.S.C. § 7107. Public Contracts Act sec.
7, 124 Stat. at 3860. And it is consistent with Congress’s
express intent to restate, not substantively change, exist-
ing law. Id. sec. 2(b), 124 Stat. at 3677 (“In the codifica-
tion of laws by this Act, the intent is to conform to the
understood policy, intent, and purpose of Congress in the
original enactments, with such amendments and correc-
tions as will remove ambiguities, contradictions, and
other imperfections . . . .”); see H.R. Rep. No. 111-42, at 3
(2009) (“This bill is intended to restate existing law with-
out substantive change.”).
We conclude that the 2011 amendment to
§ 1295(a)(10) did not substantively change this court’s
jurisdiction over Board decisions, which remains limited
to those decisions made pursuant to the CDA. Because
the Board’s decision concerning its charter jurisdiction
was not made pursuant to the CDA, we have no jurisdic-
tion to review it.
CONCLUSION
We have considered Agility’s other arguments and
find them unpersuasive. For the foregoing reasons, we
for the Federal Circuit within 120 days from the
date the contractor receives a copy of the decision;
or (B) if an agency head determines that an ap-
peal should be taken, the agency head, with the
prior approval of the Attorney General, may
transmit the decision to the United States Court
of Appeals for the Federal Circuit for judicial re-
view under section 1295 of title 28, within 120
days from the date the agency receives a copy of
the decision.
41 U.S.C. § 7107(a)(1).
AGILITY LOGISTICS SERVICES v. DEFENSE 17
affirm the Board’s dismissal for lack of jurisdiction under
the CDA. Because our jurisdiction over Board decisions
extends only to decisions made pursuant to the CDA, we
dismiss the appeal insofar as it relates to the Board’s
decision concerning its charter jurisdiction.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
The parties shall bear their own costs.