The Minesen Co. v. McHugh , 671 F.3d 1332 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
THE MINESEN COMPANY,
Appellant,
v.
JOHN MCHUGH, SECRETARY OF THE ARMY,
Appellee.
__________________________
2010-1453
__________________________
Appeal from the Armed Services Board of Contract
Appeals in No. 56346, Administrative Judge Michael T.
Paul.
_____________________________
Decided: March 2, 2012
_____________________________
SANDRA B. WICK MULVANY, McKenna Long & Aldridge
LLP, of Denver, Colorado, argued for appellant. With her
on the brief were THOMAS A. LEMMER and JOSEPH G.
MARTINEZ,III.
JAMES SWEET, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK
MANHARDT, Assistant Director. Of counsel on the brief
MINESEN CO v. ARMY 2
were SCOTT N. FLESCH and ERICA BEARDSLEY, Trial
Attorneys, United States Army Litigation Center, Con-
tract Appeals Division, of Arlington, Virginia.
__________________________
Before BRYSON, O’MALLEY, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge BRYSON.
REYNA, Circuit Judge.
The Minesen Company (“Minesen”) appeals the final
decision of the Armed Services Board of Contract Appeals
(“ASBCA” or “Board”) which granted the motion to dis-
miss of the United States Army’s Morale, Welfare, and
Recreation Fund (“the Fund”). Minesen has been under
contract with the Fund since 1993 to build and operate a
hotel facility at a military base on Oahu Island, Hawaii.
With eighteen years remaining on the agreement, the
ASBCA determined that the Fund breached the core of
the contract and the parties entered the quantum phase
of the dispute. While in the quantum phase, Minesen
filed a separate complaint alleging that the Fund had
done nothing to cure its ongoing breach. The ASBCA
dismissed Minesen’s second complaint as duplicative of
the first breach of contract action. Minesen appeals the
ASBCA dismissal of its second complaint. Because we
find that Minesen voluntarily waived its right to appeal to
this court under its negotiated contract with the Fund, we
dismiss.
I. BACKGROUND
Minesen, a small business from Denver, Colorado,
was created for the purpose of acquiring and fulfilling
government contracts. In January of 1993, after several
years of negotiation, Minesen and the Fund entered into
3 MINESEN CO v. ARMY
Contract No. NAFBA3-93-C-0001 (“the Contract”) to
create accommodations for travelling military personnel.
The Contract provided that Minesen would construct and
operate, for a term of thirty-two years, a “transient lodg-
ing facility” at Schofield Barracks in central Oahu. Joint
Appendix (“J.A.”) 272. Schofield Barracks is an 18,000
acre site twenty-three miles northwest of Honolulu, and is
the largest Army installation in Hawaii. The Minesen
lodging facility, to be built on four acres leased from the
government, became known as the Inn at Schofield Bar-
racks (“the Inn”). The Inn was to feature 184 rooms with
kitchenettes, as well as other hotel amenities such as a
vending area, guest laundry, playground, convenience
store, and deli. Id. On a secure installation, the Inn
would offer lodging only to eligible active and temporary
military personnel, their families, and qualifying veter-
ans. Under the Contract, Minesen’s lease and operation
of the Inn terminates in 2026. Id.
In addition to revenue generated operating the facil-
ity, Minesen’s consideration for the bargain was that the
Inn was officially deemed “government quarters” under
the Joint Federal Travel Regulation (“JFTR”). Id. at 274.
This designation was significant because it required
travelling military personnel to patronize the Inn or else
forfeit reimbursement for lodging costs. The Contract
stated:
The completed [Inn] will fall within the current
Joint Federal Travel Regulation definition of gov-
ernment quarters. . . . Travelers receiving gov-
ernment per diem payment, in order not to forfeit
their per diem entitlement, will be required to pa-
tronize the [Inn] on a mandatory basis as long as
confirmed reservation priorities are in accordance
with those provided at Section III, Operation Re-
quirements.
MINESEN CO v. ARMY 4
Id. The Contract did not require the Fund to deliver any
specific level of occupancy to the Inn.
The Contract indicated on its face that “NO FUNDS
OF THE UNITED STATES GOVERNMENT WILL BE
PAID OR BE DUE TO THE CONTRACTOR BY VIRTUE
OF THIS CONTRACT.” Id. at 271 (emphasis original).
In the definition section, the Contract further specified
that: “The Fund is . . . a nonappropriated fund instrumen-
tality (NAFI) of the United States . . . . The Government
is not a party to this contract, and no funds appropriated
by Congress are in any way obligated or can be obligated
by virtue of any provision of this contract.” Id. at 273.
Significant for purposes of this appeal are the Con-
tract’s express provisions regarding dispute resolution. In
the “Disputes Clause” at § II(6), the Contract stated:
a. This contract is not subject to the Contract
Disputes Act of 1978 (41 U.S.C. 601-613).
***
c. All disputes arising under or relating to this
contract shall be resolved under this clause.
***
g. The Contracting Officer’s decision shall be fi-
nal unless the Contractor appeals as provided in
paragraph h. of this clause.
h. The Contracting Officer’s final decision may be
appealed by submitting a written appeal to the
Armed Services Board of Contract Appeals within
90 days of receipt of the Contracting Officer’s final
decision. Decisions of the Armed Services Board
of Contract Appeals are final and are not subject
to further appeal.
5 MINESEN CO v. ARMY
J.A. 276-78 (emphasis original). On February 1, 1993, the
parties executed Lease No. DACA84-1-91-14, which
became an attachment to the Contract. After the parties
finalized the Contract in early 1993, the Inn was con-
structed and opened for business by June 1994.
In 1997 and 1998, the JFTR, the travel regulation in-
centivizing military personnel to patronize the Inn, was
amended. As a result of the amendments, the Depart-
ment of Defense began reimbursing for any lodging costs
up to the amount charged at government quarters,
whether or not the traveler actually stayed at government
quarters such as the Inn.
On June 7, 1999, Minesen filed a certified claim with
the Contracting Officer (“CO”) in which it alleged that the
JFTR amendments eliminating the mandatory per diem
forfeiture breached the Contract and negatively impacted
occupancy rates. Minesen sought (1) $2,541,670.14 in lost
revenues through May of 1999, and (2) future perform-
ance, or alternatively, immediate termination of the
Contract with a payment of $25,506,325.00.
The CO denied the claim. On February 18, 2000,
Minesen submitted further claims to the CO, seeking,
inter alia, anticipatory profits for breach of contract.
These claims were also denied by the CO. Minesen timely
appealed both claims to the ASBCA, a right guaranteed in
the Contract.
On November 20, 2006, after a five-week merits hear-
ing, the ASBCA issued its decision. Minesen Co., ASBCA
Nos. 52488, 52811, 07-1 BCA ¶ 33,456 (the “2006 Deci-
sion”). The ASBCA rejected Minesen’s argument that the
Fund had repudiated the Contract by acquiescing to the
changes in the JFTR. The administrative judge (“AJ”)
found no outright repudiation of the Contract because the
Fund never stated that it refused to perform. But the AJ
MINESEN CO v. ARMY 6
also found that the Contract provision requiring travelers
receiving the per diem reimbursement to patronize the
Inn
constituted the core of Minesen’s benefit of the
bargain. The Inn was located on a secure military
installation and was not open to the general pub-
lic. In order to capture a market for its services,
Minesen had to rely on an incentive to encourage
official travellers [sic] to stay at the Inn. This de-
vice was the mandatory forfeiture provision of
Clause 7. In acquiescing to the 1997 and 1998
changes in the JFTR which removed this manda-
tory forfeiture provision, the Fund affected [sic] a
basic alteration in the parties’ contractual rela-
tionship.
Id. at 123-24. The ASBCA concluded that the Fund
should have fashioned a remedy to the JFTR amend-
ments, ranging anywhere from a new reimbursement
scheme to a complete termination of the Contract for
convenience. “It failed to do so,” the ASBCA held, “and,
thus, breached the contract, entitling Minesen to recover
damages.” Id. at 124.
The ASBCA remanded the case to the CO for a de-
termination of damages. Minesen claimed entitlement to
past lost profits; interest; and future lost profits. Mine-
sen’s statement of costs calculated “anticipatory profits
from January 1, 2008 through the end of Minesen’s con-
tract equal [to] $34,024,454.” J.A. 314. The Fund identi-
fied various documents it claimed were necessary to verify
damages, particularly those showing what Minesen would
have earned from soldiers who declined to stay at the Inn
but who did not forfeit the lodging reimbursement.
Minesen did not promptly provide, among other things, its
audited financial statements for FY 1994 through FY
7 MINESEN CO v. ARMY
1996, preventing the Fund from comparing the Inn’s
profitability before and after breach.
In early 2008, barely a year into the quantum phase,
Minesen filed a new complaint (the “2008 Claim”) alleging
that, subsequent to the 2006 Decision, the Fund had
failed to cure its ongoing breach. Minesen asserted that
failure to cure over the intervening fifteen months consti-
tuted an independent ground of material breach as of
December 31, 2007, given that eighteen years were left on
the Contract.
The CO denied the 2008 Claim, stating: “[T]here is no
new dispute. This claim duplicates claims which you
previously filed . . . and to which the Board, as described
above, has already rendered a decision on the merits.” Id.
at 150. The CO noted that the earlier action “is now in
the quantum phase in which the parties are working to
effect settlement of the dispute.” Id. Minesen again
appealed to the ASBCA.
On July 7, 2008, Minesen moved for partial summary
judgment, alleging that the Fund had done nothing to
cure its continuing breach despite having been found
liable in 2006. The Fund countered with a motion to
dismiss, arguing that the 2006 Decision did not require
anything more than what it was presently doing—
cooperating in the quantum phase on remand. According
to the Fund, no new claim was warranted because it “has
regularly kept Minesen informed of the status of its
efforts to calculate damages, and thus, has provided
adequate assurances of a remedy.” Minesen Co., ASBCA
No. 56346, Slip Op. at 5 (July 16, 2010).
On July 16, 2010, the ASBCA denied Minesen’s mo-
tion for partial summary judgment and granted the
Fund’s motion to dismiss. The ASBCA found genuine
issues of material fact precluding summary judgment for
MINESEN CO v. ARMY 8
Minesen, including evidence that throughout the quan-
tum phase the Fund actively pursued discovery, con-
ducted an audit, and responded to requests. The ASBCA
also held that the 2008 Claim was merely duplicative, and
not a new cause of action:
We also agree with the Fund that Minesen’s “new”
claim in ASBCA No. 56346 is duplicative. The
factual premise of this claim is in dispute, as is its
legal conclusion that it has identified “a new, in-
dependent claim for material breach.” As the
Fund states in its brief, “the only ‘new’ facts the
Appellant cites are those related to the amount of
time the parties are taking to resolve the contro-
versy in ASBCA Nos. 55996 and 55997.” ASBCA
No. 56346, thus, is not a new cause of action, is
duplicative, and must be dismissed.
Id. at 7. Pursuant to the ASBCA final determination
dismissing the 2008 Claim, Minesen appealed to this
court.
II. DISCUSSION
Minesen argues on appeal that the ASBCA dismissal
of the 2008 Claim was improper because it constitutes a
new and distinct claim over that decided in the 2006
Decision. The Fund responds that this court should not
even reach the merits of whether the new claim is dupli-
cative because at least two threshold defects estop Mine-
sen’s appeal before this court.
First, according to the Fund, the decision of the
ASBCA was not rendered under the Contract Disputes
Act (“CDA”), 41 U.S.C. § 7101 et seq., such that the Fed-
eral Circuit lacks statutory jurisdiction over this case.
The Fund argues that the CDA does not apply to the
Contract because the Fund is a nonappropriated fund
9 MINESEN CO v. ARMY
instrumentality (“NAFI”). Second, the Fund argues that
Minesen waived any right to appeal to the Federal Circuit
pursuant to the disputes clause of the Contract, which
states that ASBCA decisions are final. The Fund main-
tains that this is a valid and enforceable provision that
expressly precludes appeal to this court by consent of the
parties.
A. Statutory Jurisdiction
Under 28 U.S.C. § 1295(a)(10), this court has jurisdic-
tion to hear appeals from an ASBCA final decision. The
Fund argues that this court lacks jurisdiction to consider
this appeal because it is a non-enumerated NAFI, as
agreed in the Contract. NAFIs are “federal government
entities whose monies do not come from congressional
appropriation but rather primarily from [their] own
activities, services, and product sales.” El-Sheikh v.
United States, 177 F.3d 1321, 1322 (Fed. Cir. 1999) (in-
ternal quotation marks omitted). Under the “NAFI
doctrine,” entities that have NAFI status are not typically
subject to suit on contract claims because any damages
awarded against them would be paid using appropriated
funds. See Furash & Co. v. United States, 252 F.3d 1336,
1338-43 (Fed. Cir. 2001). This court has clearly held that
it lacks jurisdiction under the CDA to hear contract
claims against NAFIs. Id. at 1342-44 (holding the NAFI
doctrine applicable to CDA cases).
Minesen counters that our recent holding in Slattery
v. United States, 635 F.3d 1298 (Fed. Cir. 2011) (en banc),
changes this rule. The court in Slattery indeed concluded
that the Tucker Act provides jurisdiction over claims
against NAFIs. Id. at 1301 (“Tucker Act jurisdiction does
not depend on and is not limited by whether the govern-
ment entity receives or draws upon appropriated funds.”).
While Slattery did not directly reach the CDA in its
MINESEN CO v. ARMY 10
holding, Minesen asserts that the jurisdictional analysis
would be identical. Thus, Minesen invites this court to
view the recent rescission of the NAFI doctrine as applied
to the Tucker Act as necessarily eliminating the NAFI
doctrine’s applicability to the CDA also.
We decline to decide this issue here. While we are
generally obligated to resolve jurisdictional challenges
first, Supreme Court precedent only requires federal
courts to answer questions concerning their Article III
jurisdiction—not necessarily their statutory jurisdiction—
before reaching other dispositive issues. See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 95-97, 101
(1998); Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd.,
325 F.3d 54, 59 (1st Cir. 2003) (“[W]hile Article III juris-
dictional disputes are subject to Steel Co., statutory
jurisdictional disputes are not.”). Here, the jurisdictional
issues are strictly statutory, and not constitutional. Even
without this exception for statutory jurisdictional dis-
putes, Justice Breyer, concurring in Steel Co., noted with
approval that “[t]his Court has previously made clear that
courts may ‘reserve difficult questions of . . . jurisdiction
when the case alternatively could be resolved on the
merits in the favor of the same party.’” 523 U.S. at 111
(citing Norton v. Matthews, 427 U.S. 524, 532 (1976)); see
also Bowers v. Nat’l Collegiate Athletic Ass’n, 346 F.3d
402, 415-16 (3d Cir. 2003); cf. United States v. Caruthers,
458 F.3d 459, 472 n.6 (6th Cir. 2006).
Because the question of whether claims against
NAFIs can be made pursuant to the CDA is complex post-
Slattery, and because the question has a statutory prove-
nance, we will assume jurisdiction for present purposes
and proceed directly to the substance of the appellate
waiver argument.
11 MINESEN CO v. ARMY
B. Appellate Waiver
The parties agreed in the Contract’s “Dispute Clause”
at § II(6)(h) that the ASBCA was the exclusive and final
appellate review forum: “The Contracting Officer’s final
decision may be appealed by submitting a written appeal
to the Armed Services Board of Contract Appeals within
90 days of receipt of the Contracting Officer’s final deci-
sion. Decisions of the Armed Services Board of Contract
Appeals are final and are not subject to further appeal.”
J.A. 278. Minesen does not dispute the plain language
interpretation of this contract provision, nor does it dis-
pute that it voluntarily and knowingly agreed to the
finality of ASBCA decisions. Minesen instead contends
that it could not legally consent to waive its statutory
right under 41 U.S.C. § 7107(a) to an appeal before the
Federal Circuit. In sum, Minesen concedes that it con-
tracted to curtail its right to review by this court, but now
argues that its obligation is contrary to the CDA and
public policy embodied therein.
i. Waiving Federal Circuit Appeal Is Not Contrary
to the CDA
According to Minesen, its right to appear before the
Federal Circuit is guaranteed by Congress, despite any
contrary contract language to which it may have agreed.
Minesen argues—without reference to any specific provi-
sion of the CDA—that Congress did not intend that the
right to appeal to this forum be waivable.
In order to conclude that Congress intended for the
CDA to include protection against waiving appeals from
the ASBCA to this court, that intention must be discern-
able from the text or the legislative history. See Mitsubi-
shi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (1985) (“We must assume that if Congress
intended the substantive protection afforded by a given
MINESEN CO v. ARMY 12
statute to include protection against waiver of the right to
a judicial forum, that intention will be deducible from text
or legislative history.”); Brooklyn Sav. Bank v. O’Neil, 324
U.S. 697, 705 (1945) (“[T]he question of whether the
statutory right may be waived depends upon the intention
of Congress as manifested in the particular statute.”);
McCall v. U.S. Postal Serv., 839 F.2d 664, 667 (Fed. Cir.
1988) (holding that appellant did not show that his volun-
tary waiver of a statutory right to appeal was contrary to
congressional intent). Thus, the burden is on Minesen, as
the party opposing enforcement of a contractual waiver, to
show that Congress intended to preclude such waivers.
Id.We find no such intention here. The plain words and
meaning of the relevant provision, 41 U.S.C. § 7107(a)(1),
do not proscribe a waiver of appeal rights through con-
tract. The provision reads:
Judicial review of agency board decisions
(a)Review.
(1) 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 for the Federal
Circuit within 120 days from the date the contrac-
tor 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
13 MINESEN CO v. ARMY
days from the date the agency receives a copy of
the decision.
Id. If Congress did not want this right altered by agree-
ment, it would have said so; but this provision contains no
express prohibition on appellate waivers beyond the
ASBCA.
Nor does anything in the CDA’s legislative history
demonstrate that Congress did not intend for parties to be
able to agree to the finality of ASBCA decisions. On the
contrary, Congress recognized first among the express
purposes of the CDA “induc[ing] resolution of more con-
tract disputes by negotiation prior to litigation,” S. Rep.
No. 95-1118, at 1 (1978), and “encourag[ing] the informal,
quick resolution of disputes before they can develop into
expensive and time-consuming administrative tangles or
litigation,” 124 Cong. Rec. 31,645 (1978).
Recognizing these legislative goals, we do not find
that Congress wanted to prevent parties from properly
contracting to simplify dispute resolution. Agreeing to the
finality of ASBCA decisions accomplishes precisely what
Congress intended, at least in part, in passing the CDA.
See Pathman Constr. Co. v. United States, 817 F.2d 1573,
1578 (Fed. Cir. 1987) (“A major purpose of the [Contract]
Disputes Act was to induce resolution of contract disputes
with the government by negotiation rather than litiga-
tion.”) (internal quotation marks omitted); cf. 41 U.S.C.
§ 7103(h)(1) (permitting parties to fashion “other mutu-
ally agreeable procedures” for resolving claims). Having
agreed to simplify disputes by pursuing resolution under
the terms of the Contract, Minesen should be held to its
bargain as it does not conflict with—indeed it advances—
statutory purposes. See Mitsubishi Motors, 473 U.S. at
628 (“Having made the bargain, . . . the party should be
held to it unless Congress itself has evinced an intention
MINESEN CO v. ARMY 14
to preclude a waiver of judicial remedies for the statutory
rights at issue.”).
ii. Waiving Federal Circuit Appeal Is Not Contrary
to the CDA’s Purpose
Minesen argues as a matter of public policy that al-
lowing a party to waive Federal Circuit appeal skews the
balance between the government and contractors during
contract negotiations. Minesen argues that its promise to
waive appeal rights to the Federal Circuit should be held
unenforceable because of the government’s superior
bargaining power.
a. Extensive Case Law Permits Voluntary
Waivers
The Supreme Court and this court have long held that
the government, if not otherwise prohibited by statute,
can enforce a voluntary contractual waiver with the same
force as a private party, notwithstanding superior bar-
gaining power. Town of Newton v. Rumery, 480 U.S. 386,
392-94 (1987); see also Lynch v. United States, 292 U.S.
571, 579 (1934) (“When the United States enters into
contract relations, its rights and duties therein are gov-
erned generally by the law applicable to contracts be-
tween private individuals.”); Do-Well Mach. Shop, Inc. v.
United States, 870 F.2d 637, 641 (Fed. Cir. 1989) (“Just as
the common law limits the government’s power to con-
tract in the same way it limits a private person, it also
protects the government’s power to contract in the same
way it protects a private person.”) (emphasis original).
In Rumery, the Supreme Court addressed an argu-
ment analogous to Minesen’s and held that the mere
possibility of intimidation in contracting with the gov-
ernment cannot justify invalidating all such agreements.
480 U.S. at 392-94. The Court explained that parties are
15 MINESEN CO v. ARMY
often forced to make difficult choices which effectively
forego statutory or constitutional rights. Id. at 393.
Parties can be held to such obligations if contracted
knowingly and voluntarily. Id.In McCall, this court held that a postal employee
could enter into an agreement with the government
waiving his statutorily conferred right to appeal an
agency disciplinary action. 839 F.2d at 665. The agree-
ment at issue concluded by stating that, “the removal will
be . . . with no rights of appeal to any forum . . . .” Id.When the removal action was later appealed despite the
express agreement, the AJ dismissed, finding McCall’s
waiver of appellate rights valid and enforceable. Id. at
666. This court affirmed, directly addressing McCall’s
contention that such waivers are unenforceable as against
public policy due to unequal bargaining power. Id. at 666-
67. The court explained:
The waiver agreement in this case, like that in
Rumery, reflects a rational judgment on the part
of McCall. . . . Because his choice was knowing
and voluntary, the public interest against invol-
untary waivers of rights does not weigh against
the enforcement of this agreement and it is not
void as a matter of public policy.
Id. at 667. The McCall court added that the possibility of
coercion in a civil context was less serious than what was
acceptable in Rumery, where criminal sanctions loomed.
Id.This court has further held that contractors can waive
even constitutional rights in litigation with the govern-
ment. Seaboard Lumber Co. v. United States, 903 F.2d
1560 (Fed. Cir. 1990). The Fund argues based on Sea-
board that if contractors can waive a constitutional right
to a jury by contracting into a particular forum, they can
MINESEN CO v. ARMY 16
also waive a statutory right to appeal by contracting out
of the Federal Circuit. In Seaboard, a private party had
accepted a government contract provision providing for
dispute resolution in a forum where there was no entitle-
ment to a jury. When the provision was contested, this
court found that, “[t]he Supreme Court has long recog-
nized that a private litigant may waive its right to a jury
and to an Article III court in civil cases,” either expressly
or impliedly. Id. at 1563. The Federal Circuit rearticu-
lated the voluntary nature of the government-contractor
relationship in negotiation: “‘Respondents were not com-
pelled or coerced into making the contract [with the
government]. It was a voluntary undertaking on their
part. As competent parties they have contracted for the
settlement of disputes in an arbitral manner.’” Id. at
1565 (quoting Wunderlich v. United States, 342 U.S. 98,
100 (1951)).
In this case, the record and pleadings indicate that
Minesen freely agreed to the finality of ASBCA decisions.
While a promise can be unenforceable if the interest in its
enforcement is outweighed by public policy, Rumery, 480
U.S. at 392, public policy is not per se offended when a
sophisticated contractor knowingly and voluntarily agrees
to an appellate waiver provision denying Federal Circuit
review.
b. Burnside-Ott Does Not Apply in this Case
This court in Burnside-Ott Aviation Training Center
v. Dalton, 107 F.3d 854 (Fed. Cir. 1997), analyzed public
policy concerns associated with waiving review of contract
disputes in a narrow context. Burnside-Ott held that
parties may not waive review of CO decisions to the
ASBCA, but it did not address waiving appeals from the
ASBCA to the Federal Circuit.
17 MINESEN CO v. ARMY
The court in Burnside-Ott reminded generally that
“parties to a contract may voluntarily waive certain
rights, including the right to receive an impartial and
independent federal adjudication, otherwise available to
the parties under the law.” Id. at 858. However, the
court determined that under the CDA at least one impar-
tial review of CO decisions was necessitated by the stat-
ute’s goal of “equaliz[ing] the bargaining power of the
parties when a dispute exists,” a requirement satisfied by
review in the ASBCA. Id. (citing S. Rep. No. 95-1118, at
1). Whereas the ASBCA is a neutral tribunal and not a
representative of the agency, 1 the CO is unquestionably
biased, permitting the government to “commandeer the
final decision on all disputes of fact arising under the
contract” if its decisions remain unreviewable. Id. at 858.
The court explained:
In government contract disputes, unlike contract
disputes between two private parties, the initial
1 The ASBCA is described by Congress as a
“quasi-judicial” body whose
members serve as administrative judges in an ad-
versary-type proceeding, make findings of fact,
and interpret the law. Their decisions set the
bulk of legal precedents in Government contract
law, and often involve substantial sums of money.
In performing this function they do not act as a
representative of the agency, since the agency is
contesting the contractor’s entitlement to relief.
S. Rep. No. 95-118, at 26; see also Boeing Petro. Servs.,
Inc. v. Watkins, 935 F.2d 1260, 1261 (Fed. Cir. 1991)
(under the CDA, the review boards are established as
independent, quasi-judicial forums, entities “quite distinct
from” their contracting agencies). Indeed, “[t]he contrac-
tor should feel that he is able to obtain his ‘day in court’ at
the agency boards and at the same time have saved time
and money through the agency board process.” S. Rep.
No. 95-118, at 25.
MINESEN CO v. ARMY 18
determination in each dispute is made by one of
the parties, i.e., the CO. Congress commanded
that the CO’s decision on any matter cannot be
denied Board review. . . . Permitting parties to
contract away Board review entirely would sub-
vert this purpose and return contractors to the po-
sition they occupied before the passage of the
CDA.
Id. at 858-59.
Minesen is not in the same situation described in
Burnside-Ott, wherein the contractor was stuck with the
determination of the CO, deemed “one of the parties” to
the case. Id. at 858. This court confirmed that Congress
“provide[d] a fair and balanced system” under the CDA to
review claims related to government contracts, id., includ-
ing unwaivable contractor access to the ASBCA for a de
novo review of CO determinations, recourse sufficient to
allay policy concerns inherent in the CDA. There is no
suggestion in Burnside-Ott law that appeal to this court is
additionally required to equalize bargaining power. Id.;
see also Seaboard, 903 F.3d at 1565.
An unwaivable right to ASBCA review as distin-
guished from optional review before the Federal Circuit is
supported by the CDA’s legislative history. Congress
intended under the CDA that contractors benefit from a
“flexible system that provides alternative forums for
resolution of particular kinds of disputes,” either in the
federal courts or before agency boards. S. Rep. No. 95-
118, at 13. Thus, while Congress ensured immutable
access to the United States Court of Federal Claims
(“Court of Federal Claims”) under § 7104(b) because
“[c]ontractors should not be denied a full judicial hearing
on a claim they deem important enough to warrant the
maximum due process available under our system,” for
19 MINESEN CO v. ARMY
contractors desiring a simplified process Congress pro-
vided another option under the CDA—agency boards, “the
least expensive, most expeditious forum available.” Id. at
12. Congress explained that
The aim of any remedial system is to give the par-
ties what is due them as determined by a thor-
ough, impartial, speedy, and economical
adjudication. . . . The claimant should be able to
choose a forum according to the needs of his par-
ticular case; that is, one where the degree of due
process desired can be balanced by the time and
expense considered appropriate for the case.
Id. at 13. The CDA thus enlarged the contractor’s options
for dispute resolution: “Congress mandated that the
government had to include in its contracts the broader
review provisions set out in the CDA, that is, the dual
avenues of review either by appeal to a Board of Contract
Appeals or by a direct access suit in the Court of Claims.”2
Seaboard, 903 F.3d at 1565.
The dissent contends that exercising the option for
flexible, expeditious review provided by the CDA creates
an “anomaly.” See Dissent Op. at 13. Yet neither the
CDA nor its legislative history requires that the dual
avenues necessarily be coterminous, such that both end
by appeals in this court. Agency boards are designed
instead for contractors who find that their case does not
warrant “the maximum due process available under our
2 The Federal Courts Improvement Act of 1982, Pub
L. No. 97-164, § 105(a), 96 Stat. 25 (amending 28 U.S.C.
§ 171(a)), established the United States Claims Court.
The United States Claims Court inherited the jurisdiction
of its predecessor, the United States Court of Claims.
Congress renamed it the United States Court of Federal
Claims by the Federal Courts Administration Act of 1992,
Pub. L. No. 102-572, § 902, 106 Stat. at 4516.
MINESEN CO v. ARMY 20
system,” and instead opt for “a swift, inexpensive method
of resolving contract disputes.” S. Rep. No. 95-118, at 12.
Allowing voluntary waiver of § 7107(a) appeals from the
ASBCA implements Congress’s intent that the dual
avenues serve different ends.
Minesen could have, as the dissent notes, arrived be-
fore this court through the Court of Federal Claims pur-
suant to § 7104(b) (a provision actually containing the
“notwithstanding any contract provision” guarantee), but
Minesen chose instead to accept ASBCA decisions as
final, and filed in that forum when a dispute arose in
2008. Minesen freely chose the path of streamlined
adjudication and tailored its dispute resolution mecha-
nisms with the Fund accordingly. We therefore decline
Minesen’s invitation to extend Burnside-Ott to this case.
iii. The CDA’s Standard of Review Provision Is
Irrelevant to Contractual Waiver
The dissent raises a novel theory that a standard of
review provision found at 41 U.S.C. § 7107(b) reveals
Congress’s intent that appeals from the ASBCA under
§ 7107(a) be unwaivable. Dissent Op. at 7. We disagree.
The theory that § 7107(b) renders Federal Circuit ap-
peal unwaivable was never briefed by Minesen. Minesen
did not argue that specific language in the CDA speaks to
the appellate waiver issue, and the Fund did not have a
proper opportunity to present arguments interpreting
§ 7107(b). It is well-established that federal appellate
courts do not consider arguments not timely raised by the
parties. Singleton v. Wulff, 428 U.S. 106, 120 (1976).
This rule permits litigants “the opportunity to offer all the
evidence they believe relevant to the issues” and prevents
them from being “surprised on appeal by final decision
there of issues upon which they have had no opportunity
21 MINESEN CO v. ARMY
to introduce evidence.” Id. (quoting Hormel v. Helvering,
312 U.S. 552, 556 (1941)).
In any event, the dissent’s attempt to infer Congress’s
intent by shoehorning § 7107(b)’s “notwithstanding any
contract provision” language into § 7107(a) is not convinc-
ing. By its terms, § 7107(b) merely defines this court’s
standard of review in CDA cases. Thus, while parties can
waive Federal Circuit appeal available under § 7107(a), if
they elect not to waive § 7107(b) merely sets out the
review standard that must be followed. We refuse the
dissent’s suggestion to rewrite the statute by applying
language from § 7107(b) that Congress declined to provide
directly in § 7107(a). See supra § II.B.i. Congress was
aware of how to make CDA provisions unwaivable when it
wanted. Do-Well, 870 F.2d at 641 (finding of the CDA
that, “[w]here Congress did not want the Act altered by
parties’ agreements, it said so”). Congressional silence in
this case should be construed as permitting appellate
rights beyond the ASBCA to be governed by the parties’
agreement. See id.Recognizing the lack of express language in the rele-
vant provision, the dissent relies on the spirit of the
repealed Wunderlich Act, Pub. L. No. 83-356, 68 Stat. 81(1954), to justify a strained interpretation of the CDA.
Dissent Op. at 7-11. The Wunderlich Act of 1954 was
passed to legislatively overturn the ruling in United
States v. Wunderlich, 342 U.S. 98 (1951). See H.R. Rep.
No. 83-1380 (1954). In Wunderlich, a government con-
tract clause provided that factual disputes would be
decided by the CO, with right of appeal only to the Secre-
tary of the Interior. 342 U.S. at 99. The effect of Wunder-
lich was to keep out of the Court of Claims all cases
except those claiming fraud. Id. Congress, to prevent the
agency representative from “act[ing] as a judge in his own
case,” id. at 103 (Jackson, J., dissenting), “as a matter of
MINESEN CO v. ARMY 22
grace, provided for narrow judicial review of a contracting
officer’s decision” in the Wunderlich Act, Seaboard, 903
F.2d at 1565 (emphasis added). The legislative fix en-
sured that contractors would always have a right to
review CO determinations before the Court of Claims. Id.In passing the CDA, Congress already renewed the
guarantee of direct access from the partial CO to the
Court of Federal Claims, “notwithstanding any contract
provision . . . to the contrary,” 41 U.S.C. § 7104(b). The
Wunderlich Act’s “narrow” focus on preventing CO deci-
sions from being unreviewable does not inform our under-
standing of congressional intent regarding appeals from
the impartial ASBCA to this court.
III. CONCLUSION
The disputed contract provision states that,
“[d]ecisions of the Armed Services Board of Contract
Appeals are final and are not subject to further appeal.”
J.A. 278. We find that Minesen knowingly and voluntar-
ily waived its right to appeal to this court, and we respect
the clear intent of the parties agreeing to the finality of
the ASBCA result. We dismiss.
DISMISSED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
__________________________
THE MINESEN COMPANY,
Appellant,
v.
JOHN MCHUGH, SECRETARY OF THE ARMY,
Appellee.
__________________________
2010-1453
__________________________
Appeal from the Armed Services Board of Contract
Appeals in No. 56346, Administrative Judge Michael T.
Paul.
__________________________
BRYSON, Circuit Judge, dissenting.
I do not agree that the disputes clause of Minesen’s
contract with the Army Morale Welfare and Recreation
Fund (“the Fund”) constituted an enforceable waiver of
Minesen’s right to appeal to this court, requiring the
dismissal of this appeal. I would therefore hold that this
court has jurisdiction over Minesen’s appeal. On the
merits, however, I would affirm the Board’s dismissal of
Minesen’s claims as duplicative of claims brought in the
company’s ongoing action for breach of contract.
MINESEN CO v. ARMY 2
I
The majority dismisses Minesen’s claim based on a
contractual provision that purports to bar any judicial
review of a decision of the Armed Services Board of Con-
tract Appeals. I consider that provision to be unenforce-
able, and I therefore conclude that the Contract Disputes
Act (“CDA”) authorizes Minesen to take this appeal. In
order to reach that issue, however, it is necessary to
dispose of several preliminary arguments made by the
government, all of which I find to be legally insupport-
able. The majority does not address those issues because
it concludes that the waiver argument by itself disposes of
this appeal.
A
The government first argues that Minesen’s claim is
not covered by the CDA because the Fund is a non-
appropriated fund instrumentality (“NAFI”). We held in
Pacrim Pizza Co. v. Pirie, 304 F.3d 1291 (Fed. Cir. 2002),
that contracts with NAFIs other than those specifically
identified in the Tucker Act, 28 U.S.C. § 1491, fall outside
the scope of the CDA. 304 F.3d at 1293. Since the CDA
offers the only route of appeal to this court from decisions
of the Board, see Zinger Constr. Co. v. United States, 753
F.2d 1053, 1054 (Fed. Cir. 1985), the government argues
that Pacrim Pizza forecloses our review of Minesen’s
claim.
The government’s argument runs afoul of this court’s
recent en banc decision in Slattery v. United States, 635
F.3d 1298 (Fed. Cir. 2011). We held in Slattery that “the
source of funding of an agency’s activities or for payment
of its judgments is not a limitation on Tucker Act jurisdic-
tion.” Id. at 1320. Thus, contracts with NAFIs presump-
3 MINESEN CO v. ARMY
tively fall within the Tucker Act’s waiver of sovereign
immunity, and “exceptions require an unambiguous
statement by Congress.” Id. at 1320-21.
Although Slattery did not address the NAFI doctrine
in the context of the CDA, its holding applies equally to
claims brought under that Act, because the reach of the
CDA is tied to the waiver of sovereign immunity in the
Tucker Act. The CDA is applicable to “any express or
implied contract (including those of the nonappropriated
fund activities described in [the Tucker Act]) made by an
executive agency . . . .” 41 U.S.C. § 7102(a). We specifi-
cally held in Slattery that the enumeration of certain
NAFIs in the Tucker Act did not signal any intent on the
part of Congress to retain sovereign immunity over con-
tracts with other NAFIs. 635 F.3d at 1313-14. After
Slattery, the CDA must be deemed to apply to “any ex-
press or implied contract . . . made by an executive
agency,” irrespective of the source of funds used to carry
out the contract. The dissenting judges in Slattery con-
tended that Congress reaffirmed the existence of the
NAFI doctrine when it enacted the CDA, id. at 1326-27(Gajarsa, J., dissenting), but a majority of this court was
not persuaded by that argument. Our holdings in Pacrim
Pizza and prior cases that were predicated on the NAFI
doctrine are no longer good law in the wake of Slattery.
Thus, Minesen may proceed under the CDA even if the
Fund is considered a NAFI.
B
The government next argues that no appeal can be
taken in this case because the Fund is not an “executive
agency,” and the CDA applies only to contracts entered
into by “executive agencies.” See 41 U.S.C. § 7102(a).
That position is contrary to the text of the CDA, which
MINESEN CO v. ARMY 4
provides that nonappropriated fund activities entered into
by executive agencies are covered by the Act. As a fall-
back position, the government relies on Pacrim Pizza to
argue that the only NAFIs that qualify as “executive
agencies” are those listed in the Tucker Act. As noted,
however, Pacrim Pizza is no longer good law on that
point. Therefore, the Fund must be considered an “execu-
tive agency” for purposes of the CDA.
C
The government’s next argument is that Minesen’s
contract is not covered by the CDA because the contract
does not concern a “procurement.” That argument is
based on the government’s proposed definition of “pro-
curement,” which is tied to the definition of the term
“acquisition” found in the statutes governing the Office of
Federal Procurement Policy. Those statutes define “ac-
quisition” as a process that uses appropriated funds. 41
U.S.C. § 131. The government argues that because this
court has defined “procurement” under the CDA as “all
stages of the process of acquiring property or services,”
Distributed Solutions, Inc. v. United States, 539 F.3d
1340, 1345-46 (Fed. Cir. 2008), the CDA does not cover
government contracts that concern only nonappropriated
funds.
This court made clear in United States v. General
Electric Corp., 727 F.2d 1567 (Fed. Cir. 1984), that
“[n]othing in the [CDA] limits its application to appropri-
ated funds.” 727 F.2d at 1570; see also Furash & Co. v.
United States, 252 F.3d 1336, 1342 (Fed. Cir. 2001) (“the
CDA contains no express provision limiting it to agencies
supported by appropriated funds”). Furthermore, the
government’s “procurement” argument is at odds with the
CDA’s express coverage of contracts involving nonappro-
5 MINESEN CO v. ARMY
priated fund activities. The definition of “acquisition”
that the government relies on was added by the National
Defense Authorization Act for Fiscal Year 2004, Pub. L.
No. 108-136, § 1411, 117 Stat. 1392, 1663-64 (2003). The
government has pointed to no evidence that the drafters
of that unrelated statute intended for it to have the effect
of narrowing the scope of the CDA. See United States v.
Fausto, 484 U.S. 439, 453 (1988) (“it can be strongly
presumed that Congress will specifically address lan-
guage on the statute books that it wishes to change”). In
sum, the term “procurement” does not bar a government
contractor from proceeding under the CDA simply be-
cause the contracting agency does not use appropriated
funds for the contract.
D
The government’s principal argument on appeal is
that the “disputes clause” of the contract between Mine-
sen and the Fund constituted an enforceable waiver of
Minesen’s right to appeal to this court. The majority
agrees with the government on that issue, but I do not.
The clause at issue was specifically designed for in-
corporation into NAFI contracts at a time when the NAFI
doctrine was in effect. See Army Regulation 215-4, ch. 2-
14(b) (1987); DA Form 4075-R (1987) (clause I-25). The
Board’s charter grants it the authority to hear claims
arising under the CDA, 48 C.F.R. ch. 2, app. A, but that
route of review was of no use to contractors who entered
into agreements with NAFIs, because of the NAFI doc-
trine. Even absent the disputes clause, Minesen’s appeal
could not have been heard by this court before our deci-
sion in Slattery, because the Tucker Act had not been
interpreted to waive sovereign immunity for causes of
action arising from contracts with non-enumerated
MINESEN CO v. ARMY 6
NAFIs. Moreover, Minesen could not have proceeded
under the CDA because we had tied the scope of that Act
to the NAFI doctrine, see Pacrim Pizza, 304 F.3d at 1293,
and Board rulings that were not made pursuant to the
CDA could not be appealed to this court, Zinger Constr.,
753 F.2d at 1054. Thus, at the time the contract was
signed, the disputes clause set forth Minesen’s only right
to review of decisions of the contracting officer. And the
disputes clause allowed the Board (but not this court) to
hear appeals under a provision of its charter that permits
it to review claims relating to contracts entered into by
any authorized representative of the Army, irrespective of
the source of funds used to carry out the contract. 48
C.F.R. ch. 2, app. A; see, e.g., In re Atlantis Constr. Corp.,
ASBCA No. 44044, 96-1 BCA ¶ 28,045 (assuming jurisdic-
tion over appeal based not on the CDA but on the disputes
clause in a contract with a NAFI).
In the aftermath of Slattery, the disputes clause is in
tension with 41 U.S.C. § 7107(a)(1)(A), the provision of
the CDA that permits this court to review decisions of the
Boards of Contract Appeals. The majority concludes that
the disputes clause controls based on the general princi-
ple that a party can freely contract away its right to
judicial review. That principle is not applicable, however,
when a provision of a government contract conflicts with a
federal statute. Am. Airlines, Inc. v. Austin, 75 F.3d 1535,
1538 (Fed. Cir. 1996); see generally The Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 15 (1972) (contract’s choice-of-
forum clause unenforceable “if enforcement would contra-
vene a strong public policy of the forum in which the suit
is brought, whether declared by statute or by judicial
decision”); Restatement (Second) of Contracts § 178
(1981). The majority rules that enforcing a contractual
waiver of the right of appeal to this court is not contrary
to public policy. The court’s ruling, however, ignores the
7 MINESEN CO v. ARMY
fact that Congress has already made the determination
that enforcing such a waiver is contrary to public policy.
We are obligated to respect that determination. See
Restatement (Second) of Contracts § 178 (“A promise or
other term of an agreement is unenforceable on grounds
of public policy if legislation provides that it is unenforce-
able . . . .”).
The CDA provides the exclusive remedy for all con-
tract disputes that fall within its scope. Dalton v. Sher-
wood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995).
It provides a right to judicial review of Board decisions, 41
U.S.C. § 7107(a)(1)(A), and it prescribes particular stan-
dards of review that this court must adhere to
“[n]otwithstanding any contract provision . . . to the
contrary,” id. § 7107(b). The disputes clause, which
prohibits any such review, thus conflicts with the CDA.
As a “contract provision to the contrary,” the disputes
clause must yield to the CDA.
While the provision of the CDA that grants the right
of appeal to this court, 41 U.S.C. § 7107(a)(1)(A), does not
contain language regarding conflicting contractual provi-
sions, the standard of review provision, id. § 7107(b),
reveals the intent of Congress to permit review by this
court of all government contract disputes brought under
the CDA. 1 The language of that provision hews closely to
1 Because Minesen did not discuss section 7107(b)
in its brief, the majority deems it improper to consider
section 7107(b) in analyzing whether appeals under
section 7107(a) can be waived. The question whether the
right to appeal under section 7107(a) can be waived was
fully briefed by the parties, and Minesen argued that
under applicable case law the CDA bars contractual
waivers of that right. Reference to section 7107(b) helps
show why that statutory argument is correct and why the
case law on which Minesen relies should be applied here.
MINESEN CO v. ARMY 8
the language of the Wunderlich Act, Pub. L. No. 83-356,
68 Stat. 81 (1954), which was specifically intended to
prohibit the government from inserting jurisdiction-
defeating provisions in government contracts. The
Wunderlich Act was repealed during the pendency of this
appeal as part of the recodification of Title 41. Pub. L.
No. 111-350, 124 Stat. 3677, 3859 (Jan. 4, 2011). The
Wunderlich Act was intended to be “superseded by section
10 of the Contract Disputes Act of 1978 (41 U.S.C. 609
[recodified at 41 U.S.C. § 7107]),” H.R. Rep. No. 111-42,
at 9 (2009), 2 so even prior to its repeal, the Wunderlich
Act would not have controlled this case. Nevertheless, an
understanding of the Wunderlich Act is important to the
proper interpretation of the CDA’s judicial review provi-
sions.
The Wunderlich Act consisted of two provisions. The
first allowed for judicial review of any agency decision
alleged to be arbitrary or capricious, unsupported by
substantial evidence, fraudulent, or made in bad faith,
notwithstanding any contractual provision to the con-
When analyzing a party’s argument, this court is not
confined to the party’s table of authorities in determining
whether that argument has merit. That is particularly
true with respect to jurisdictional questions, as we have
an independent duty to inquire into whether we have
jurisdiction over a matter, without regard to how (or even
whether) the parties have briefed that issue.
2 According to the legislative history, the Wunder-
lich Act was, in fact, meant to be repealed by the CDA,
but “due to apparent oversight, repeal was not enacted.”
H.R. Rep. No. 111-42, at 9; see also S. Rep. No. 95-1118, at
34 (1978) (“Section 14(i) repeals 41 U.S.C. 321–322. The
provisions in the repealed Wunderlich Act set a standard
of review for agency board appeals which is no longer
applicable in [the CDA].”).
9 MINESEN CO v. ARMY
trary. Pub. L. No. 83-356 (codified before repeal at 41
U.S.C. § 321); see S&E Contractors, Inc. v. United States,
406 U.S. 1, 17-18 (1972) (decisions of boards of contract
appeals fall within the scope of this provision). The
second stated that “[n]o Government contract shall con-
tain a provision making final on a question of law the
decision of any administrative official, representative, or
board.” Pub. L. No. 83-356 (codified before repeal at 41
U.S.C. § 322). The Wunderlich Act did not itself waive
sovereign immunity for government contractor claims, but
it allowed contractors to bring suit under the Tucker Act.
The Wunderlich Act prevented government contrac-
tors from “bargain[ing] away their right to full-scale
judicial review of administrative decisions on questions of
law,” Lockheed Aircraft Corp. v. United States, 375 F.2d
786, 790 (Ct. Cl. 1967), or their right to limited judicial
review of agency decisions on questions of fact. Congress
intended to “retain for the judiciary their proper func-
tions,” notwithstanding standard government contract
clauses purporting to withdraw judicial review. Hoel-
Steffen Constr. Co. v. United States, 684 F.2d 843, 851 (Ct.
Cl. 1982); see also S&E Contractors, 406 U.S. at 14 (de-
scribing the purpose of the Wunderlich Act as “to free
citizens from a form of administrative tyranny”); Sea-
board Lumber Co. v. United States, 903 F.2d 1560, 1565
(Fed. Cir. 1990) (stating that the Wunderlich Act
“limit[ed] by statute . . . the contractual options previ-
ously available to the government”); Hoel-Steffen Constr.,
684 F.2d at 851 (“we have in the history of the Wunder-
lich Act a strong expression of repugnance by Congress to
the creation of decisional finality by contract clause”).
Such clauses were recognized by Congress as contrary to
the “tradition that everyone should have his day in court.”
H.R. Rep. No. 83-1380, at 4 (1954). Because contractors
lacked ordinary negotiating power when entering into
MINESEN CO v. ARMY 10
government contracts, provisions that made an agency’s
decision unappealable were simply voided. Id. at 5. The
Wunderlich Act, in short, was designed to invalidate
jurisdiction-defeating clauses such as the one at issue in
this case.
In the Contract Disputes Act, Congress chose lan-
guage that carefully tracked the Wunderlich Act in order
to make clear that the CDA was continuing the prohibi-
tion on contractual provisions that purport to foreclose
judicial review. Subsection 7107(b) of Title 41, formerly
subsection 609(b) of the same title, states:
Notwithstanding any contract provision, regula-
tion, or rule of law to the contrary, in an appeal by
a contractor or the Federal Government from the
decision of an agency board . . .
(1) the decision of the agency board on a ques-
tion of law is not final or conclusive; but
(2) the decision of the agency board on a ques-
tion of fact is final and conclusive and
may not be set aside unless the decision
is--
(A) fraudulent, arbitrary, or capricious;
(B) so grossly erroneous as to necessarily
imply bad faith; or
(C) not supported by substantial evidence.
The CDA was not designed to diminish the statutory right
government contractors previously held under the
Wunderlich Act to obtain judicial review of decisions of
agency boards. To the contrary, the CDA broadened
contractors’ appeal rights. See Seaboard Lumber, 903
F.2d at 1565 (“The CDA, which followed the Wunderlich
Act, further restricted the government’s options on dis-
11 MINESEN CO v. ARMY
pute resolution.”); id. (describing CDA judicial review
provisions as “broader” than those of the Wunderlich Act).
Under the CDA, contractors are given the option ei-
ther to pursue their claims before an agency board or to
bring an action directly in the Court of Federal Claims.
41 U.S.C. § 7104. Appeal rights to this court are available
under either circumstance. See 41 U.S.C. § 7107(a)(1)(A)
(providing for appeal to this court of a Board decision); 28
U.S.C. § 1295(a)(3) (providing for appeal to this court
from the Court of Federal Claims). The standard of
review in both the agency board and the Court of Federal
Claims is de novo. Wilner v. United States, 24 F.3d 1397,
1401-02 (Fed. Cir. 1994) (en banc) (agency board review);
41 U.S.C. § 7104(b)(4) (Court of Federal Claims review);
see also id. § 7103(e) (contracting officer’s “specific find-
ings of fact are not binding in any subsequent proceed-
ing”). The standard of review applicable to appeals to this
court from agency boards of contract appeals is the same
as that set forth in the Wunderlich Act. Compare Pub. L.
No. 83-356 with 41 U.S.C. § 7107(b); see S. Rep. No. 95-
1118, at 14 (1978) (noting that the CDA adopted the
Wunderlich Act’s “standards of finality of agency board
decisions”); H.R. Rep. No. 95-1556, at 25-26 (1978) (same).
And the legislative history of the CDA makes it clear that
Congress intended the CDA to continue to permit contrac-
tors to appeal to this court from decisions of agency
boards of contract appeals notwithstanding any contrac-
tual provision to the contrary. See S. Rep. No. 95-1118, at
26 (“it would be an anomaly in the American judicial
system for [agency boards] to have the final authority on
decisions that set important precedents in procurement
law”); see also id. at 12 (noting that certain disputes
“ultimately must go to court”); id. at 13 (agency boards
are a forum for the “initial resolution of disputes”).
MINESEN CO v. ARMY 12
We addressed a situation similar to the present case
in Burnside-Ott Aviation Training Center v. Dalton, 107
F.3d 854, 858-59 (Fed. Cir. 1997). The contractual provi-
sion at issue in that case foreclosed review of a contract-
ing officer’s calculation of an “award fee” due to the
contractor. 107 F.3d at 856. This court held the clause
unenforceable in light of two provisions in the CDA. One
noted that a contracting officer’s factual determinations
“shall not be binding in any subsequent proceeding.” 41
U.S.C. § 605(a) (1994), recodified as 41 U.S.C. § 7103(e).
The other stated that an appeal from a contracting offi-
cer’s decision “shall proceed de novo in accordance with
the rules of the appropriate court.” 41 U.S.C. § 609(a)(3)
(1994), recodified as 41 U.S.C. § 7104(b)(4). We reasoned
that “any attempt to deprive the Board of power to hear a
contract dispute that otherwise falls under the CDA
conflicts with the normal de novo review mandated by the
CDA and subverts the purpose of the CDA.” Burnside-
Ott, 107 F.3d at 858; see also id. at 859 (“the CDA trumps
a contract provision inserted by the parties that purports
to divest the Board of jurisdiction, unless the contract
provision otherwise depriving jurisdiction is itself a
matter of statute primacy”). We also noted that the
purpose behind the CDA was to equalize bargaining
power between the government and its contractors and to
prevent the government from using disputes clauses to
“commandeer the final decision on all disputes of fact
arising under the contract.” Id. The majority attempts to
distinguish Burnside-Ott by stating that “it did not ad-
dress waiving appeals from the ASBCA to the Federal
Circuit.” I am not persuaded by that distinction. In
Burnside-Ott, after determining that the Board did have
jurisdiction to hear the appeal, notwithstanding the
contractual provision at issue, we addressed the merits of
the case, reviewing the issue de novo. See 107 F.3d at
860. By doing so, we made clear that the nonwaivable
13 MINESEN CO v. ARMY
right of review conferred by the CDA extended not just to
the Board, but to this court as well.
Although the contractual provision at issue in this
case purports to displace the provisions of the CDA alto-
gether, it cannot have the effect of foreclosing a direct
appeal to the Court of Federal Claims, because 41 U.S.C.
§ 7104(b)(1) provides that such an appeal can be brought
“notwithstanding any contract provision . . . to the con-
trary.” Id.; see Seaboard Lumber, 903 F.2d at 1565 (in the
CDA “Congress mandated . . . dual avenues of review
either by appeal to a Board of Contract Appeals or by a
direct access suit in the Court of Claims”); S. Rep. No. 95-
1118, at 11-12 (addressing the importance of contractors
being able to directly access a “fully judicialized, totally
independent forum . . . .”). The court’s decision in this
case therefore creates an anomaly. Notwithstanding the
disputes clause, Minesen could have appealed the Con-
tracting Officer’s decision directly to the Court of Federal
Claims rather than the Board. See § 7104(b)(1). If Mine-
sen had followed that course, the disputes clause would
have been inapplicable, and there would have been no bar
to review both in the Court of Federal Claims and ulti-
mately in this court. Yet the majority holds that by
choosing to appeal to the Board, Minesen has forfeited its
appeal rights in this court, notwithstanding our statutory
jurisdiction over appeals from Board decisions under the
CDA. That is a type of contractual restriction on judicial
review that the CDA, in following the Wunderlich Act,
sought to avoid. While the CDA provided for “a flexible
system” that allows a claimant “to choose a forum accord-
ing to . . . the degree of due process desired . . . balanced
by the time and expense considered appropriate for the
case,” it was important to the statutory system that
judicial review was available through either route. S.
Rep. No. 95-1118. I therefore disagree with the majority’s
MINESEN CO v. ARMY 14
ruling that the contractual provision preventing appeal to
this court is enforceable.
II
Because I believe that this court has jurisdiction over
this appeal, I would reach the merits. On the merits,
however, I would affirm the Board’s decision that Mine-
sen’s complaint is duplicative of the complaint in its
pending quantum action.
The Board has discretion to dismiss a complaint that
it deems duplicative of a pending related action. See
Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1577 (Fed.
Cir. 1991); see generally Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976) (“the
general principle is to avoid duplicative litigation”). In
the first count of its complaint in this action, Minesen
asserts that the Fund’s “knowing failure to cure the
breach” of contract identified in the earlier proceeding
constituted an independent material breach of contract.
The second count of the complaint alleges that the Fund
repudiated the contract by not curing its breach. Minesen
requests damages for both counts in accordance with the
contract’s termination-for-convenience provision. In other
words, Minesen treats the contract as effectively termi-
nated and seeks to recover damages for total breach.
That theory of damages was rejected by the Board in
the original proceeding. Although the Board determined
that the Fund was in breach of the contract, the Board did
not characterize that breach as a total breach or an an-
ticipatory repudiation. Instead, the Board remanded for a
calculation of damages for the Fund’s ongoing partial
breach of contract. Thus, Minesen’s second complaint
15 MINESEN CO v. ARMY
sought to revive a cause of action that had been rejected
in a prior proceeding.
The Board determined that Minesen’s second com-
plaint did not raise any new cause of action that was not
addressed in the previous proceeding, and the Board
therefore dismissed the complaint. The Board reasoned
that just as Minesen could not recover damages for total
breach of contract in the initial proceeding, it could not
recover those damages in the subsequent proceeding
based only on the passage of time. Instead, it could bring
a series of actions for partial breach of contract until the
government performed. See Ind. Mich. Power Co. v.
United States, 422 F.3d 1369, 1377 (Fed. Cir. 2005). The
Board noted that the only new facts alleged by Minesen in
the second proceeding “relate[] to the amount of time the
parties are taking to resolve the controversy in [the prior
proceeding].” The Board did not abuse its discretion in
determining that delay alone is insufficient to justify the
initiation of a separate proceeding on a theory of total
contract breach. On the merits, therefore, I would affirm
the decision of the Board. Because I would hold that this
court has jurisdiction to address the merits of Minesen’s
appeal, I respectfully dissent from the majority’s decision
on that issue.