Palafox Street Associates, L.P. v. United States ( 2014 )


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  •          In the United States Court of Federal Claims
    No. 13-247 C
    (E-Filed: February 12, 2014)
    )
    PALAFOX STREET ASSOCIATES, L.P.,                   )
    )   Motion to Dismiss for Lack of
    Plaintiff,                    )   Jurisdiction, RCFC 12(b)(1);
    )   Motion to Dismiss for Failure to
    v.                                   )   State a Claim, RCFC 12(b)(6);
    )   Contract Disputes Act of 1978;
    THE UNITED STATES,                                 )   Election Doctrine; Judicial
    )   Estoppel; Res Judicata
    Defendant.                    )
    )
    Nick R. Hoogstraten, Washington, DC, for plaintiff.
    Joshua A. Mandlebaum, Trial Attorney, with whom were Stuart F. Delery, Assistant
    Attorney General, Bryant G. Snee, Acting Director, and Patricia M. McCarthy, Assistant
    Director, Commercial Litigation Branch, Civil Division, United States Department of
    Justice, Washington, DC, for defendant. John S. Tobey, Assistant General Counsel,
    Office of General Counsel, United States General Services Administration, Washington,
    DC, of counsel.
    OPINION and ORDER
    CAMPBELL-SMITH, Chief Judge
    This case involves a contract dispute between Palafox Street Associates, L.P.
    (Palafox or plaintiff) and the General Services Administration (GSA, government, or
    defendant). See Compl., Dkt. No. 1, ¶¶ 1–2, 4. Palafox is the successor in interest to
    Keating Development Company (Keating) under a lease between Keating and GSA “for
    the construction and subsequent lease of a federal courthouse” (the Lease). Id. ¶ 3. The
    parties dispute the interpretation of a tax adjustment clause in the Lease. See id. ¶¶ 7, 19,
    22–23.
    Currently before the court is the Complaint, filed April 8, 2013; Defendant’s
    Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim Upon Which
    Relief Can Be Granted (defendant’s Motion or Def.’s Mot.), Dkt. No. 7, attached to
    which is an appendix (Def.’s App.), filed July 22, 2013; Plaintiff’s Opposition to
    Defendant’s Motion to Dismiss (Pl.’s Resp.), Dkt. No. 12, filed September 23, 2013; and
    1
    Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion to Dismiss for Lack of
    Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted (Def.’s
    Reply), Dkt. No. 17, filed October 29, 2013.
    For the reasons stated below, defendant’s Motion is GRANTED-IN-PART,
    STAYED-IN-PART, and DENIED-IN-PART.
    I.     Background 1
    A.     The Lease and the Circumstances Giving Rise to the Dispute
    On October 3, 1995, Keating and GSA entered into the Lease, under which
    “Keating agreed to construct the federal courthouse and lease it back to GSA for a term
    of twenty years beginning June 1, 1997 (later amended to August 1, 1997).” Compl. ¶
    12. The Lease included a tax adjustment clause, which provided that GSA would pay
    real estate taxes separately from the rent. See id. ¶¶ 6–7. The tax adjustment clause, as
    amended, states:
    The Government shall make an annual lump sum adjustment, as additional
    payment to or deduction from, its share of any increase or decrease in real
    estate taxes that are assessed over the agreed upon base year or negotiated
    dollar amount . . . . In accordance with this paragraph, the base year real
    estate taxes for purposes of adjustments are hereby established as
    $250,000.
    Def.’s App. A84 ¶ 1.4, A86 ¶ B (the Lease); see also Compl. ¶¶ 7–8. In December of
    1996, “Keating assigned its interest under the Lease to Palafox, a special purpose entity
    with ownership similar to Keating.” Compl. ¶ 13. The Bank of New York was
    subsequently designated the trustee under the Lease. See id. ¶¶ 14, 17.
    From August 1997 through December 2011, in addition to paying the monthly rent
    due under the Lease, GSA also paid Palafox “1/12 of the negotiated $250,000 baseline
    amount for real estate taxes each month.” Id. ¶ 15. In 2011, GSA conducted an audit of
    the rent and real estate taxes associated with the Lease. See id. ¶ 17; Def.’s Mot. 3. The
    audit revealed that the real estate taxes actually paid by Palafox each year “were
    substantially less than the $250,000 amount.” Compl. ¶ 17; see id. ¶ 15 (conceding that,
    from 1997 through 2011, the annual assessed real estate taxes on the property were less
    than $250,000). On June 8, 2011, the contracting officer sent a letter to the Bank of New
    York, which stated that the discrepancy between the annual real estate taxes paid by
    Palafox and the annual $250,000 paid by GSA to Palafox “created an excessive
    obligation due the government in the amount of $824,416.01.” Def.’s App. A1 (June 8,
    2011 letter); see also Compl. ¶ 17. The contracting officer requested that the Bank of
    1
    The court only provides those facts that are relevant to the briefing currently
    before the court.
    2
    New York conduct its own analysis of the amount owed to the government and respond
    within thirty days. Def.’s App. A1 (June 8, 2011 letter). It is not clear from the record
    whether the Bank of New York responded to the contracting officer’s June 8, 2011 letter.
    On September 29, 2011, Keating (on behalf of Palafox) sent a letter to the
    contracting officer, stating its position that “the $250,000 is an allowance and that [the
    contracting officer’s] analysis of the lease language does not reflect the matter correctly.”
    Def.’s App. A3 (Sept. 29, 2011 letter); see also Compl. ¶ 19. On October 19, 2011, the
    contracting officer responded to the September 29, 2011 letter by e-mail. Def.’s App. A4
    (Oct. 19, 2011 e-mail). The contracting officer responded that GSA would likely
    withhold from future rental payment the amount allegedly owed to the government
    ($824,416.01), id. at A5, and, from December 1, 2011 through May 1, 2012, GSA
    attempted to offset the $824,416.01 by sending the Bank of New York half of the
    monthly rent payments, Compl. ¶ 20. However, the Bank of New York refused to accept
    partial rent payments, the effect of which “was a setoff of six full monthly rent payments”
    or $831,858. Id. ¶¶ 20, 25; cf. Def.’s Mot. 4 (conceding that the $831,858 in withheld
    rental payments is $7,441.99 above the $824,416.01 amount identified by the contracting
    officer as being owed to the government).
    In a letter to the contracting officer dated February 7, 2012, Palafox reiterated its
    disagreement with the government’s position and requested that the parties meet in an
    “attempt to resolve th[e] matter without great conflict.” Def.’s App. A7 (Feb. 7, 2012
    letter); see Compl. ¶ 22. On April 9, 2012, the contracting officer issued a final decision
    on the matter. Def.’s App. A9–10 (Apr. 9, 2012 final decision); see also Compl. ¶ 23.
    The contracting officer determined that, “[b]ecause the amount of taxes paid [was]
    consistently less than what [was] negotiated and executed in the lease, the government
    [was] entitled to a reimbursement for the difference in what was paid and what is
    provided as part of annual and monthly rent.” Def.’s App. A9 (Apr. 9, 2012 final
    decision). The contracting officer concluded that “the excess obligation due [to] GSA is
    confirmed as $824,416.01.” Id. The letter advised that “[t]his [was] the final decision of
    the Contracting Officer,” and that, pursuant to the Contract Disputes Act of 1978 (the
    CDA), Palafox could appeal the decision either to the Civilian Board of Contract Appeals
    (CBCA or Board) or the United States Court of Federal Claims (Court of Federal
    Claims). Id. at A10 (emphasis omitted).
    B.     Procedural History
    Palafox appealed the contracting officer’s April 9, 2012 final decision to the
    CBCA on July 2, 2012. Compl. ¶ 26; see Def.’s App. A11 (CBCA Notice of Docketing).
    Palafox argued before the CBCA that the tax adjustment clause “require[d] GSA to pay
    no less than the baseline $250,000 each year for real estate taxes,” and that GSA’s
    $831,858 withholding constituted a breach of contract. Def.’s App. A19–20 (CBCA
    Compl.). On September 7, 2012, the government filed a motion to dismiss for lack of
    jurisdiction, arguing that the CBCA lacked jurisdiction over Palafox’s appeal because
    3
    Palafox failed to submit a certified claim to the contracting officer for a final decision.
    Def.’s App. A26 (Def.’s CBCA Mot. to Dismiss); see Compl. ¶ 27; cf. 
    41 U.S.C. § 7103
    (b) (requiring contractors to certify claims over $100,000).
    On September 11, 2012, the CBCA issued an order directing Palafox to “consider
    whether [its] correspondence with the contracting officer rises to the level of a claim that
    was . . . properly certified.” Def.’s App. A37–38 (CBCA Sept. 11, 2012 Order); see
    Compl. ¶ 28. The CBCA’s order of September 11, 2012 further provided: “If the answer
    is no, [Palafox] and [the government] should jointly request to withdraw the appeal. If
    the answer is yes, [Palafox] should affirmatively respond to [the government’s] motion.”
    Def.’s App. A38 (CBCA Sept. 11, 2012 Order). By a letter dated September 17, 2012,
    Palafox requested that the CBCA revise or vacate its order of September 11, 2012. Def.’s
    App. A39 (Sept. 17, 2012 letter). Palafox argued that the CDA’s certification
    requirements were inapplicable because Palafox had appealed a contracting officer’s final
    decision on a government claim. Id.; see also Compl. ¶ 28. A status conference was held
    on September 18, 2012, see Def.’s App. A39 (Sept. 17, 2012 letter) (stating that a status
    conference was scheduled for September 18, 2012), and, on October 9, 2012, the parties
    filed a joint motion to dismiss without prejudice “so that Palafox [could] obtain a
    contracting officer’s final decision on its claim,” Def.’s App. A52 (CBCA Joint Mot. to
    Dismiss); see also Compl. ¶ 29. The CBCA granted the parties’ joint motion to dismiss
    on October 17, 2012. Def.’s App. A53 (CBCA Order of Dismissal); Compl. ¶ 29.
    On October 22, 2012, Palafox submitted a certified claim to the contracting officer
    in the amount of $831,858, Compl. ¶ 30; see Def.’s App. A54–A80 (certified claim), and
    the contracting officer issued a final decision denying Palafox’s claim on December 20,
    2012, Def.’s App. A81–83 (Dec. 20, 2012 final decision); Compl. ¶ 31. Palafox filed its
    Complaint in this court on April 8, 2013. See Compl. 1. Plaintiff appeals both the
    contracting officer’s April 9, 2012 final decision (Count Four) and the contracting
    officer’s December 20, 2012 final decision (Count Five). 
    Id. ¶¶ 51, 56
    . Palafox argues,
    inter alia, that “[t]he plain language of the Tax Adjustment clause does not provide for
    refunds to the GSA if the real estate taxes are less than the agreed $250,000 baseline,”
    and that, therefore, GSA breached the Lease by setting off the rent payments. 
    Id.
     ¶¶ 49–
    50, 54–55; cf. Def.’s App. A19–20 (CBCA Compl.) (arguing the same before the
    CBCA). Palafox seeks $831,858 plus interest in addition to other relief. Compl. 12
    (Prayer for Relief).
    On July 22, 2013, defendant filed its Motion, arguing that the court should dismiss
    Palafox’s claim for $824,416.01 for lack of subject matter jurisdiction pursuant to Rule
    12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), and that the
    court should dismiss Palafox’s claim for the remaining $7,441.99, and any other claims
    that survive defendant’s Rule 12(b)(1) motion, for failure to state a claim upon which
    relief can be granted pursuant to Rule 12(b)(6). Def.’s Mot. 1.
    4
    With respect to defendant’s Rule 12(b)(1) motion to dismiss, defendant argues that
    this court lacks jurisdiction over Palafox’s claim for $824,416.01 because this “claim was
    raised before the CBCA and the CBCA had jurisdiction to consider it.” Def.’s Mot. 5.
    Under the CDA, a contractor may appeal a contracting officer’s final decision in one of
    two fora: the appropriate board of contract appeals or the Court of Federal Claims. See
    
    41 U.S.C. § 7104
    (a)–(b)(1) (2012). A contractor is compelled to make a forum choice
    because the election doctrine precludes the appeal of a claim in both fora. Nat’l
    Neighbors, Inc. v. United States, 
    839 F.2d 1539
    , 1542 (Fed. Cir. 1988). Defendant
    contends that Palafox made a binding election to appeal its $824,416.01 claim to the
    CBCA and that, therefore, the election doctrine bars this court from hearing the claim.
    With respect to defendant’s Rule 12(b)(6) motion to dismiss, defendant argues that
    res judicata bars plaintiff’s remaining claim for $7,441.99—and any other claims that
    survive defendant’s Rule 12(b)(1) motion—“because an identical case was dismissed by
    the CBCA with prejudice.” Def.’s Mot. 1; see id. at 5. Under the doctrine of res judicata,
    “a final judgment on the merits bars a second action involving the same parties and the
    same claim.” Ford-Clifton v. Dep’t of Veteran Affairs, 
    661 F.3d 655
    , 660 (Fed. Cir.
    2011). Defendant contends that, in granting the parties’ joint motion to dismiss, the
    CBCA “technically reached a final judgment on the merits,” and that, pursuant to the
    doctrine of res judicata, the court should therefore dismiss plaintiff’s entire Complaint.
    Def.’s Mot. 9.
    II.    Legal Standards
    A.     Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
    “When considering a motion to dismiss for lack of subject matter jurisdiction
    under RCFC 12(b)(1), the Court accepts as true the undisputed allegations in the
    complaint and draws all reasonable inferences in favor of the plaintiff.” Low v. United
    States, 
    90 Fed. Cl. 447
    , 450 (2009). The plaintiff bears the burden of establishing the
    court’s jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force
    Exch. Serv., 
    846 F.2d 746
    , 748 (Fed. Cir. 1988); Arakaki v. United States, 
    62 Fed. Cl. 244
    , 247 (2004). A dismissal under RCFC 12(b)(1) “is warranted when, assuming the
    truth of all allegations, jurisdiction over the subject matter is lacking.” Arakaki, 62 Fed.
    Cl. at 247 (internal quotation marks omitted). “When a party challenges the jurisdictional
    facts alleged in the complaint, the court may consider relevant evidence outside the
    pleadings to resolve the factual dispute.” Id. (citing Reynolds, 
    846 F.2d at 747
    ); see 2
    James Wm. Moore et al., Moore’s Federal Practice ¶ 12.30[3] (3d ed. 2013) (“[U]nlike a
    Rule 12(b)(6) dismissal, the court need not confine its evaluation to the face of the
    pleadings . . . .”). If the court determines that it does not have jurisdiction, it must
    dismiss the claim. RCFC 12(h)(3).
    The Tucker Act establishes and limits the jurisdiction of the Court of Federal
    Claims. See 
    28 U.S.C. § 1491
     (2012). The Tucker Act affords this court jurisdiction
    5
    over claims “against the United States founded either upon the Constitution, or any Act
    of Congress or any regulation of an executive department, or upon any express or implied
    contract with the United States, or for liquidated or unliquidated damages in cases not
    sounding in tort.” 
    Id.
     § 1491(a)(1). Although the Tucker Act waives the sovereign
    immunity necessary for a plaintiff to sue the United States for money damages, United
    States v. Mitchell, 
    463 U.S. 206
    , 212 (1983), it does not confer any substantive rights
    upon a plaintiff, United States v. Testan, 
    424 U.S. 392
    , 398 (1976). A plaintiff must
    establish an independent substantive right to money damages from the United States—
    that is, a money-mandating source within a contract, regulation, statute or constitutional
    provision—in order for the case to proceed. See Jan’s Helicopter Serv., Inc. v. Fed.
    Aviation Admin., 
    525 F.3d 1299
    , 1306 (Fed. Cir. 2008).
    The CDA is such a money-mandating statute. The CDA confers upon this court
    the authority to adjudicate a claim for monetary damages arising from “any express or
    implied contract . . . made by an executive agency for . . . the procurement of property,
    other than real property in being.” 
    41 U.S.C. § 7102
    (a)(1); cf. Kelley v. United States, 
    19 Cl. Ct. 155
    , 160 (1989) (“Under the CDA, the [Court of Federal Claims] has jurisdiction
    to entertain claims arising from the lease of real property . . . .”).
    B.     Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
    A motion to dismiss pursuant to RCFC 12(b)(6) asserts a “failure to state a claim
    upon which relief can be granted.” RCFC 12(b)(6). To survive a Rule 12(b)(6) motion,
    “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
    relief that is plausible on its face.’” Ashcroft v. Iqbal (Iqbal), 
    556 U.S. 662
    , 678 (2009)
    (quoting Bell Atl. Corp. v. Twombly (Twombly), 
    550 U.S. 544
    , 570 (2007)). 2 “A claim
    has facial plausibility when the plaintiff pleads factual content that allows the court to
    draw the reasonable inference that the defendant is liable for the misconduct alleged.” 
    Id.
    (citing Twombly, 
    550 U.S. at 556
    ). This means that the complaint must “raise a right to
    relief above the speculative level.” See Twombly, 
    550 U.S. at 555
    .
    A complaint can also be dismissed under RCFC 12(b)(6) if it is clear from the face
    of the complaint that an affirmative defense exists. Larson v. United States, 
    89 Fed. Cl. 363
    , 382 (2009), aff’d, 376 F. App’x 26 (Fed. Cir. 2010). “Affirmative defenses that
    2
    The Rules of the United States Court of Federal Claims (RCFC) generally mirror
    the Federal Rules of Civil Procedure (FRCP). C. Sanchez & Son, Inc. v. United States, 
    6 F.3d 1539
    , 1541 n.2 (Fed. Cir. 1993); see RCFC 2002 rules committee note
    (“[I]nterpretation of the court’s rules will be guided by case law and the Advisory
    Committee Notes that accompany the Federal Rules of Civil Procedure.”). Rule 12 of the
    RCFC is substantially identical to Rule 12 of the FRCP. Compare RCFC 12 with FRCP
    12. Therefore, the court relies on cases interpreting FRCP 12 as well as those
    interpreting RCFC 12.
    6
    have been considered under a Rule 12(b)(6) motion to dismiss, include, among
    others, . . . ‘the barring effect of res judicata and related preclusion principles.’” Corrigan
    v. United States, 
    82 Fed. Cl. 301
    , 304 (2008) (quoting 5B Charles Alan Wright & Arthur
    R. Miller (Wright & Miller), Federal Practice and Procedure § 1357 (3d ed. 2008)). “As
    claim preclusion rests on a final judgment on the merits, it can quite properly and
    naturally be raised via a merits-based RCFC 12(b)(6) motion.” Chisolm v. United States,
    
    82 Fed. Cl. 185
    , 193 (2008), aff’d, 298 F. App’x 957 (Fed. Cir. 2008).
    When ruling on a RCFC 12(b)(6) motion to dismiss, the court “must accept as true
    all the factual allegations in the complaint.” Sommers Oil Co. v. United States (Sommers
    Oil), 
    241 F.3d 1375
    , 1378 (Fed. Cir. 2001). Based on this information, the court must
    make “all reasonable inferences in favor of the non-movant.” 
    Id.
     Nonetheless,
    “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
    statements, do not suffice.” Iqbal, 
    556 U.S. at 678
    . Further, the court is “not bound to
    accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 
    478 U.S. 265
    , 286 (1986); accord Twombly, 
    550 U.S. at 555
    .
    III.   Discussion
    A.     The Election Doctrine
    The CDA requires that claims by a contractor against the government “shall be in
    writing” and “shall be submitted to the contracting officer for a decision.” 
    41 U.S.C. § 7103
    (a)(1)–(2). The CDA also requires that claims by the government against a
    contractor “shall be the subject of a written decision by the contracting officer.” 
    Id.
     §
    7103(a)(3). Although contractors must certify claims over $100,000, id. § 7103(b),
    claims by the government do not require certification, Placeway Constr. Corp. v. United
    States (Placeway), 
    920 F.2d 903
    , 906 (Fed. Cir. 1990), superseded by statute on other
    grounds, Court of Federal Claims Technical and Procedural Improvements Act of 1992,
    Pub. L. No. 102–572, § 907(b), 
    106 Stat. 4506
    , 4519.
    Because the CDA does not define the term “claim,” the court looks to the Federal
    Acquisition Regulations (FAR) for guidance. M. Maropakis Carpentry, Inc. v. United
    States (M. Maropakis), 
    609 F.3d 1323
    , 1327 (Fed. Cir. 2010). The FAR defines a
    “claim” as “a written demand or written assertion by one of the contracting parties
    seeking, as a matter of right, the payment of money in a sum certain.” 
    48 C.F.R. § 52.233
    –1(c) (2013). A claim need not be “submitted in any particular form or use any
    particular wording.” M. Maropakis, 
    609 F.3d at 1327
    .
    Whether a claim is made by a contractor or the government, the CDA requires that
    a contracting officer issue a final decision on the claim before it can be appealed. See
    Sharman Co. v. United States, 
    2 F.3d 1564
    , 1568 (Fed. Cir. 1993) (“Under the CDA, a
    final decision by the contracting officer on a claim . . . is a jurisdictional prerequisite to
    further legal action thereon.”) (internal quotation marks omitted), overruled on other
    7
    grounds by Reflectone, Inc. v. Dalton, 
    60 F.3d 1572
     (Fed. Cir. 1995). A contractor may
    appeal a contracting officer’s final decision to either the appropriate board of contract
    appeals or the Court of Federal Claims. 
    41 U.S.C. §§ 7104
    (a)–(b)(1).
    Pursuant to the election doctrine, once a contractor chooses the forum in which to
    lodge its appeal, the contractor’s choice is binding, and the contractor is no longer able to
    pursue its appeal in the alternate forum. See Nat’l Neighbors, Inc., 
    839 F.2d at 1542
    (“[T]he binding election of forums is an ‘either-or’ alternative, and, as such, does not
    provide a contractor with dual avenues for contesting a contracting officer’s adverse
    decision.”). “Thus, if a contractor makes an informed, knowing, and voluntary decision
    to pursue its appeal in another forum with jurisdiction over the appeal, the Court of
    Federal Claims is required to dismiss a subsequently filed appeal concerning the same
    claim for lack of jurisdiction.” Bowers Inv. Co., v. United States (Bowers), 
    104 Fed. Cl. 246
    , 254 (2011) (internal quotation marks omitted), aff’d, 
    695 F.3d 1380
     (Fed. Cir.
    2012). The election doctrine only applies, however, if the forum chosen by the contractor
    had jurisdiction over the appeal. See Bonneville Assocs. v. United States, 
    43 F.3d 649
    ,
    653 (Fed. Cir. 1994) (stating that “if the forum originally selected lacked subject matter
    jurisdiction over the appeal[,] . . . no true choice of forum is available to the contractor
    and the Election Doctrine does not apply” (internal citation omitted)); Nat’l Neighbors,
    Inc., 
    839 F.2d at 1542
     (“[U]nder the Election Doctrine, it is a contractor’s filing of an
    appeal . . . in a forum with jurisdiction over the proceeding that precludes the
    contractor . . . from pursuing its claim in the alternate forum.” (emphasis added)).
    1.     The Election Doctrine Bars the Court from Hearing Plaintiff’s Appeal of
    the Contracting Officer’s April 9, 2012 Final Decision
    As discussed above, Palafox appealed the contracting officer’s April 9, 2012 final
    decision to the CBCA in July 2012, and defendant subsequently filed a motion to dismiss
    for lack of jurisdiction because Palafox had not submitted a certified claim to the
    contracting officer for a final decision. See supra Part I.B; cf. 
    41 U.S.C. § 7103
    (b)
    (requiring contractors to certify claims over $100,000); Thoen v. United States, 
    765 F.2d 1110
    , 1116 (Fed. Cir. 1985) (referring to the contractor’s certification requirement as a
    “jurisdictional prerequisite”). Defendant now argues, however, that the CBCA had
    jurisdiction over that appeal. Def.’s Mot. 7; see also 
    id.
     (“Upon further examination, we
    believe that our earlier motion to dismiss the CBCA case was incorrect with respect to
    $824,416.01 . . . .”). According to defendant, because the contracting officer’s April 9,
    2012 final decision was “on a Government claim,” Palafox was not required to certify the
    claim before appealing the decision to the CBCA. 
    Id.
     (emphasis added); cf. Placeway,
    
    920 F.2d at 906
     (stating that “certification is not required for government claims”). For
    the reasons set forth below, the court finds that it must dismiss plaintiff’s appeal of the
    contracting officer’s April 9, 2012 final decision for want of jurisdiction.
    a.     The CBCA Had Jurisdiction Over Plaintiff’s Appeal of the Contracting
    Officer’s April 9, 2012 Final Decision
    8
    Citing the decision of the United States Court of Appeals for the Federal Circuit
    (Federal Circuit) in Placeway, defendant contends that “[t]he Government’s retention of
    contract payments through setoff, when the contracting officer has determined both
    liability and damages in a written statement, constitutes a directly[]appealable final
    decision on a Government claim.” Def.’s Reply 3 (citing Placeway, 
    920 F.2d at
    906–07).
    Plaintiff does not directly address this contention. 3 Instead, plaintiff makes the following
    arguments: (1) that the CBCA “implicitly—if not explicitly—dismissed the appeal
    because of a lack of subject matter jurisdiction,” Pl.’s Resp. 7, (2) that defendant is
    judicially estopped from arguing that the CBCA had jurisdiction over Palafox’s appeal,
    id. at 8, (3) that the CBCA “never accepted jurisdiction and thus Palafox never made a
    binding election,” id. at 13, and (4) that Palafox’s appeal to the CBCA “was not
    ‘informed, knowing, and voluntary,’” id. at 14 (emphasis and capitalization omitted).
    The court first addresses the substance of defendant’s argument and then addresses each
    of plaintiff’s arguments in turn.
    The court finds persuasive defendant’s reliance on Placeway. In that case, the
    government withheld payment of the contract balance totaling $297,226.12 due to
    Placeway’s alleged untimely performance under a construction contract with the
    government. Placeway, 
    920 F.2d at 905
    . Placeway subsequently submitted a written
    demand to the contracting officer for the contract balance. 
    Id.
     The contracting officer
    denied the request in a letter, stating that “the contract price balance due would not be
    ‘released’ because Placeway had failed to complete the contract ‘in a timely manner.’”
    
    Id.
     The contracting officer’s letter did not specify the precise amount of damages to be
    withheld nor did it include language indicating that it represented a final decision. See 
    id. at 906
    . Placeway filed suit in the United States Claims Court (Claims Court), the
    predecessor to the Court of Federal Claims, seeking, inter alia, $297,226.12 plus interest.
    
    Id. at 905
    .
    The Claims Court held “that the Government had asserted a right of set off,”
    which “constituted a government claim” that did not require certification. 
    Id. at 906
    (internal quotation marks omitted). The Claims Court concluded, however, that it lacked
    jurisdiction over Placeway’s suit because the contracting officer had not issued a final
    decision. 
    Id.
     On appeal, the Federal Circuit agreed “that the set off asserted [had
    formed] a government claim,” 
    id. at 906
    , which the Circuit Court “characterized as a
    3
    In a footnote, plaintiff attempts to “adopt[] the Government’s earlier arguments
    made before the board in its Motion to Dismiss for Lack of Subject Matter Jurisdiction
    and Memorandum in Support of Government’s Motion to Abate.” Pl.’s Resp. 12 n.6
    (internal citations omitted); see Def.’s App. A26–36 (Def.’s CBCA Mot. to Dismiss);
    Def.’s App. A45–51 (Def.’s CBCA Mot. to Abate). However, RCFC 5.4(b)(3) provides:
    “A party must not incorporate a brief or memorandum by reference; the court will
    disregard any such incorporation.” RCFC 5.4(b)(3). The court therefore disregards
    plaintiff’s attempt to incorporate by reference defendant’s briefing before the CBCA.
    9
    claim seeking incidental and consequential damages for Placeway’s alleged breach of
    contract,” 
    id.
     at 906 n.1. But, finding that the contracting officer “effectively made a
    final decision on the government claim” by “declin[ing] to pay Placeway the balance due
    on the contract,” 
    id. at 906
    , the Federal Circuit vacated the Claims Court’s dismissal of
    the claim, 
    id. at 907
    . The Federal Circuit observed that the contracting officer’s
    “decision . . . determine[d] both liability and damages,” 
    id. at 907
    ; see 
    id. at 906
     (“Both
    issues of liability and of damages should usually be resolved before judicial review is
    sought.”), and noted that the contracting officer had “concluded that Placeway was liable
    because of delayed performance and effectively ruled that damages would be the contract
    balance,” 
    id. at 907
    . Because “a final decision on a government claim” had issued, the
    Federal Circuit concluded that “the Claims Court ha[d] jurisdiction, even though the
    claim was not certified.” 
    Id.
    In the case at hand, the contracting officer informed Palafox by e-mail on October
    19, 2011 that he expected GSA to begin withholding $824,416.01 from future rental
    payments—the amount for which Palafox was allegedly liable. Def.’s App. A4 (Oct. 19,
    2011 e-mail). And, as the contracting officer anticipated, GSA sent six partial monthly
    rent payments to the Bank of New York beginning on December 1, 2011. Compl. ¶ 20.
    In a letter to the contracting officer dated February 7, 2012, Palafox voiced its
    disagreement with the government’s position and requested that the parties meet in an
    “attempt to resolve th[e] matter.” Def.’s App. A7 (Feb. 7, 2012 letter). On April 9, 2012,
    the contracting officer issued a final decision, finding that “[b]ecause the amount of taxes
    paid [was] consistently less than what [was] negotiated and executed in the lease, the
    government [was] entitled to a reimbursement for the difference in what was paid and
    what is provided as part of annual and monthly rent.” Def.’s App. A9 (Apr. 9, 2012 final
    decision). The contracting officer concluded that “the excess obligation due [to the] GSA
    is confirmed as $824,416.01.” 
    Id.
    The court finds that, similar to the contract balance withheld by the government in
    Placeway, the rent withheld by GSA here constituted a government claim. See Placeway,
    
    920 F.2d at 906
     (finding “that the set off asserted [was] a government claim”). Because
    the contracting officer found Palafox liable for paying taxes that “were consistently less
    than what [was] negotiated and executed in the lease” and assessed damages in the
    amount of $824,416.01, Def.’s App. A9 (Apr. 9, 2012 final decision), the court also finds
    that the contracting officer’s April 9, 2012 decision was a final decision that determined
    both liability and damages. Accordingly, the contracting officer’s April 9, 2012 decision
    was a final decision on a government claim. The court therefore concludes that the
    CBCA had jurisdiction over plaintiff’s appeal. See Placeway, 
    920 F.2d at 906
     (“Because
    certification is not required for government claims, the Claims Court would have
    jurisdiction over an appeal from a decision of a [contracting officer], provided it is
    final.”).
    10
    b.     The CBCA Neither Explicitly Nor Implicitly Dismissed Plaintiff’s Appeal
    for Want of Jurisdiction
    Plaintiff argues that the CBCA “implicitly—if not explicitly—dismissed the
    appeal because of a lack of subject matter jurisdiction.” Pl.’s Resp. 7; see also id. at 9
    (“There is no doubt that the [CBCA] dismissed the appeal because of [a] lack of subject
    matter jurisdiction.”). The court disagrees.
    In support of its argument, plaintiff refers to the CBCA’s order of September 11,
    2012, in which the CBCA stated that, “[b]ased on a cursory review of the appeal file,” it
    appeared that the CBCA’s decision in Red Gold, Inc. v. Department of Agriculture,
    CBCA 2259, 12–
    1 BCA ¶ 34,921
     (2011), applied to the facts of plaintiff’s appeal. 4
    Def.’s App. A37 (CBCA Order of Sept. 11, 2012); cf. Def.’s App. A33 (Def.’s CBCA
    Mot. to Dismiss) (arguing that the CBCA should dismiss plaintiff’s appeal because, like
    the appellant in Red Gold, plaintiff failed to certify its claim to the contracting officer for
    a final decision). The CBCA ordered plaintiff “to review Red Gold and then respond to
    [defendant’s] motion [to dismiss].” Def.’s App. A37 (CBCA Order of Sept. 11, 2012).
    The CBCA suggested that, prior to filing a response, plaintiff should discuss with
    defendant “the jurisdictional nuances of the CDA and how it might best resolve this
    matter.” 
    Id.
     at A37–A38. The CBCA further advised:
    4
    To the extent that plaintiff argues that the CBCA’s order of September 11, 2012
    was itself a decision on a jurisdictional issue, defendant correctly observes that
    “[c]ontested jurisdictional issues must be decided by a three-judge panel.” Def.’s Reply
    3; cf. Def.’s App. A38 (CBCA Order of Sept. 11, 2012) (signed by a single CBCA
    judge). Rule 1(e) of the CBCA’s Rules of Procedure provides that cases are “assigned to
    a panel consisting of three judges, with one member designated as the presiding
    judge, . . . [who] is responsible for processing the case.” CBCA Rule 1(e). Absent
    certain exceptions not present here, all contested dispositive matters must be decided by a
    majority of the panel. Id.; cf. CBCA Rule 12(e) (providing that the presiding judge alone
    may issue an order of dismissal only if the motion to dismiss is uncontested).
    At the time of the CBCA’s Order of September 11, 2012, plaintiff had not yet
    responded to defendant’s motion to dismiss, and, therefore, the CBCA could not have
    reasonably concluded that defendant’s dispositive motion was uncontested. In fact, in a
    letter dated September 17, 2012, plaintiff sent a letter to the CBCA judge who had signed
    the September 11, 2012 Order stating that plaintiff “intend[ed] to respond [to] and oppose
    [defendant’s] Motion.” Def.’s App. A39 (Sept. 17, 2012 letter); see also 
    id.
     at A41
    (stating that plaintiff “reserve[d] its right to respond formally to [defendant’s] [m]otion”).
    Accordingly, the CBCA’s September 11, 2012 Order, signed by a single CBCA judge,
    could not have constituted a decision on a jurisdictional issue.
    11
    In addressing [defendant’s] motion, [plaintiff] should consider whether . . .
    [its] claim . . . was properly certified. If the answer is no, [the parties]
    should jointly request to withdraw the appeal. If the answer is yes,
    [plaintiff] should affirmatively respond to [defendant’s] motion.
    Id.; cf. 
    41 U.S.C. § 7103
    (b) (requiring contractors to certify claims over $100,000).
    On September 17, 2012, plaintiff responded to the court’s order of September 11,
    2012 with a letter requesting that the CBCA “revise and[/]or vacate its order.” Def.’s
    App. A39 (Sept. 17, 2012 letter). Plaintiff claimed that the CBCA’s “[o]rder
    accept[ed]—without the benefit of a submission from [plaintiff]—the fundamental
    premise of the Government’s Motion [to dismiss] that the sole jurisdictional issue is
    whether or not [plaintiff’s claim] . . . was . . . properly certified.” Def.’s App. A39 (Sept.
    17, 2012 letter). Plaintiff argued that the CDA’s certification requirements were
    inapposite “[b]ecause this is a Government claim from which Palafox has appealed.” 
    Id.
    at A40. Plaintiff further stated that it did not intend for the letter to constitute its response
    to defendant’s motion to dismiss and that it “reserve[d] its right to respond formally to
    the [g]overment’s [m]otion.” 
    Id. at 41
    ; see 
    id.
     (“The purpose of this letter is simply to
    provide a complete picture of the facts with regard to limited aspects of the Board’s
    [September 11, 2012] Order ahead of the Status Conference scheduled for September 18,
    2012.”).
    On September 18, 2012, defendant filed a motion to abate, in which defendant
    “urge[d] the Board . . . to abate th[e] Appeal until the parties have fully briefed the Board
    on the jurisdictional issues.” 
    Id.
     at A45–46 (Def.’s CBCA Mot. to Abate); see 
    id.
     at A47
    (“[Plaintiff’s] arguments [in the September 17, 2012 letter] present new issues, which
    provide all the more reason to abate the proceedings until after the parties have fully
    briefed the Board and the Board rules[]on the jurisdictional issues.”). Defendant also
    presented arguments in opposition to the arguments set forth in plaintiff’s September 17,
    2012 letter. 
    Id.
     at A48–A50. The CBCA held a status conference with the parties on
    September 18, 2012, see Def.’s App. A39 (Sept. 17, 2012 letter) (stating that a status
    conference was scheduled for September 18, 2012); Pl.’s Resp. 6 (confirming that “[a]
    status conference was held on September 18, 2012”), but the details of this status
    conference are not known to the court.
    On October 9, 2012, the parties filed a joint motion to dismiss without prejudice
    “so that Palafox [could] obtain a contracting officer’s final decision on its claim.” Def.’s
    App. A52 (CBCA Joint Mot. to Dismiss); see Pl.’s Resp. 6 (stating that, “because Palafox
    could not establish that there was a properly certified claim as directed by the [CBCA’s]
    order, Palafox agreed with the Government to file a joint motion to dismiss the appeal
    without prejudice” (emphasis omitted)). Further to the parties’ joint motion to dismiss,
    the CBCA dismissed plaintiff’s appeal without issuing a ruling on defendant’s motion to
    12
    dismiss for lack of jurisdiction. See Def.’s App. A53 (CBCA Order of Dismissal) (“On
    October 9, 2012, the parties jointly moved to dismiss the appeal. Accordingly, [the
    appeal] is DISMISSED.”); Pl.’s Resp. 6 (conceding that “the jurisdictional issues raised
    by the Government’s motion to dismiss were never fully briefed, and the board never
    ruled on the motion” (emphasis omitted)). The court does not impute more to the
    CBCA’s dismissal decision than was expressed. Accordingly, the court finds that the
    CBCA did not dismiss plaintiff’s appeal for want of subject matter jurisdiction; but,
    rather, it was dismissed at the request of the parties.
    c.     The Doctrine of Judicial Estoppel Cannot Vest this Court with Subject
    Matter Jurisdiction
    Plaintiff also posits that defendant is judicially estopped from arguing that the
    CBCA had jurisdiction over plaintiff’s appeal because this position is inconsistent with
    defendant’s earlier position before the CBCA. Pl.’s Resp. 7; cf. Def.’s Mot. 7 (arguing
    that its “earlier motion to dismiss the CBCA case was incorrect”). The doctrine of
    judicial estoppel provides that “[w]here a party assumes a certain position in a legal
    proceeding, and succeeds in maintaining that position, he may not thereafter, simply
    because his interests have changed, assume a contrary position, especially if it be to the
    prejudice of the party who has acquiesced in the position formerly taken by him.” New
    Hampshire v. Maine, 
    532 U.S. 742
    , 749 (2001) (internal quotation marks omitted).
    As defendant correctly observes, however, “principles of estoppel do not apply to
    jurisdiction.” Def.’s Reply 5. “It is well settled that no action of the parties can confer
    subject-matter jurisdiction on a tribunal and that the principles of estoppel do not apply to
    vest subject-matter jurisdiction where Congress has not done so.” Dunklebarger v. Merit
    Sys. Prot. Bd., 
    130 F.3d 1476
    , 1480 (Fed. Cir. 1997); see Son Broad., Inc. v. United
    States, 
    42 Fed. Cl. 532
    , 536 (1998) (“Jurisdiction is conferred by Congress, not by
    defendant’s arguments in [a prior] court proceeding.”); see also Whiting v. Krassner, 
    391 F.3d 540
    , 544 (3d Cir. 2004) (“[T]here is an exception to the general concept of judicial
    estoppel when it comes to jurisdictional facts or positions, such that it has been said that
    judicial estoppel . . . cannot conclusively establish jurisdictional facts.” (alteration in
    original) (internal quotation marks omitted)). The case law unequivocally establishes that
    defendant’s adoption of inconsistent positions in this case cannot confer jurisdiction upon
    this court to hear plaintiff’s claim. 5 Colman v. United States, 
    96 Fed. Cl. 633
    , 639 (2011)
    (finding that although the government had made inconsistent jurisdictional arguments,
    5
    Noting that government attorneys are “public servants,” the court admonishes
    defendant for “‘taking a litigation position that opens it up to the criticism that it has
    whipsawed an opponent both because it is unfair to the plaintiff and because it wastes the
    resources of the plaintiff, the executive branch, and the judiciary.’” Mata v. United
    States, 
    107 Fed. Cl. 618
    , 624 (2012) (quoting Phillips v. United States, 
    77 Fed. Cl. 513
    ,
    521 (2007)).
    13
    “this inconsistency does not confer jurisdiction on this Court”); accord Whiting, 
    391 F.3d at 544
     (“[C]ourts have generally refused to resort to principles of judicial estoppel to
    prevent a party from ‘switching sides’ on the issue of jurisdiction.”). Thus, although
    defendant’s inconsistent positions may have affected plaintiff adversely, the doctrine of
    judicial estoppel cannot operate here as plaintiff urges.
    d.     Plaintiff’s Appeal to the CBCA Was a Binding Election of Forum
    Plaintiff next argues that the election doctrine does not apply because “the board
    never accepted jurisdiction,” 6 Pl.’s Resp. 13; see 
    id.
     (claiming that the CBCA “believe[d]
    it lack[ed] subject matter jurisdiction over the appeal before it”), and, therefore, “there
    was no binding earlier election of the board as a forum,” id. at 14. According to plaintiff,
    “[f]or [a] motion to dismiss based on the election doctrine to be ripe for action at this
    Court, the board must have determined whether, as a matter of law, the board had
    jurisdiction over the appeal.” Id. at 13 (citing Nat’l Neighbors, Inc., 
    839 F.2d at
    1542–
    43); see id. at 14 (arguing that because the CBCA dismissed plaintiff’s claim before
    determining whether it had jurisdiction, “the question of whether this Court should apply
    the election doctrine in this case will never ‘ripen’”). Plaintiff also contends that “‘[t]his
    court may not apply the Election Doctrine to bar a suit until it is certain that a ‘binding
    election’ before a board of contract appeals has occurred.’” Pl.’s Resp. 13 (quoting
    States Roofing Corp. v. United States, 
    70 Fed. Cl. 299
    , 301 (2006)).
    Defendant counters that “the election doctrine does not require the board to
    affirmatively ‘accept’ jurisdiction by denying a motion to dismiss.” Def.’s Reply 7.
    Defendant contends that “[t]he pivotal question is not whether the board affirmatively
    ‘accepted’ jurisdiction by denying a motion to dismiss,” but, rather, “‘whether the board
    possessed jurisdiction.’” 
    Id.
     (quoting Bonneville Assocs., 43 F.3d at 653). According to
    defendant, “[t]he election doctrine applies when, as here, the board possesses jurisdiction,
    the board does not decide any jurisdictional issues, and the appellant voluntarily
    withdraws its appeal and then files a complaint in this Court.” 7 Id.
    6
    Plaintiff presents this argument in the alternative to its argument that the CBCA
    dismissed its appeal because of a lack of subject matter jurisdiction. Pl.’s Resp. 14 n.7;
    cf. supra Part III.A.2 (addressing plaintiff’s argument that the CBCA dismissed plaintiff’s
    appeal because of a lack of jurisdiction).
    7
    The court notes that defendant’s characterization of the procedural history of the
    case is lacking in detail. Plaintiff and defendant filed a joint motion to dismiss plaintiff’s
    appeal of the contracting officer’s April 9, 2012 final decision, “so that Palafox [could]
    obtain a contracting officer’s denial decision on its claim.” Def.’s App. A52 (CBCA
    Joint Mot. to Dismiss). The CBCA granted the parties’ joint motion to dismiss on
    October 17, 2012, id. at A53 (CBCA Order of Dismissal), and plaintiff submitted a
    certified claim to the contracting officer five days later, id. at A54–80 (certified claim).
    14
    The court finds inapposite National Neighbors and States Roofing, the cases upon
    which plaintiff relies. The plaintiff in National Neighbors appealed a contracting
    officer’s final decision to the applicable board of contract appeals. Before the board
    decided whether National Neighbors had timely filed its appeal—and thus whether it
    possessed jurisdiction over the appeal, National Neighbors “filed a complaint in the
    Claims Court ‘to protect [National Neighbors’] rights in the event that the [board]
    determines that [National Neighbors’] appeal . . . was untimely filed.” National
    Neighbors, Inc., 
    839 F.2d at 1541
     (some alterations in original). The Claims Court found
    that the election doctrine applied and dismissed National Neighbors’ complaint for lack
    of jurisdiction. See 
    id.
     The Federal Circuit vacated and remanded, 
    id. at 1544
    , holding
    that “[t]he proceeding before the Claims Court was not ripe for [dismissal],” 
    id. at 1541
    .
    The Federal Circuit explained that, “[f]or the proceeding before the Claims Court to be
    ripe for action, the board first must determine whether, as a matter of fact, National
    Neighbors’ appeal was timely and thus whether, as a matter of law, the board had
    jurisdiction over National Neighbors’ appeal.” 
    Id. at 1543
    ; see also 
    id.
     (“Prior to the
    board determining whether National Neighbors’ appeal is timely and that the board has
    jurisdiction and can resolve the dispute, it is not possible to determine under the Election
    Doctrine whether National Neighbors has made a binding election to choose the board for
    resolution of its dispute with the contracting officer, by appealing to the board.”). The
    Federal Circuit concluded:
    Because, 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’ appeal, we hold that the
    proceeding before the Claims Court was not ripe for the Claims Court to
    dismiss National Neighbors’ complaint pursuant to the Contracts Disputes
    Act on grounds that National Neighbors had made a binding election under
    the Election Doctrine by appealing to the board the contracting officer's
    adverse decision.
    
    Id.
    States Roofing presents a similar set of factual circumstances. In that case, after
    appealing the final decision of a contracting officer to the applicable board of contract
    appeals, States Roofing filed a complaint in this court to “preserve . . . any of its CDA
    claims over which the [board] might decline jurisdiction.” States Roofing Corp., 70 Fed.
    Cl. at 300. The court stated that a “contractor may file a protective suit in this court when
    the same claims have been presented in an appeal to a board of contract appeals and that
    The contracting officer denied plaintiff’s claim on December 20, 2012. Id. at A81–83
    (Dec. 20, 2012 final decision). Plaintiff filed this Complaint appealing both the
    contracting officer’s April 9, 2012 final decision and the contracting officer’s December
    20, 2012 final decision. Compl. ¶¶ 51, 56.
    15
    board has not yet determined whether the appeal before it is timely.” Id. at 301 (citing,
    inter alia, National Neighbors, Inc., 
    839 F.2d at 1543
    ); see 
    id.
     (stating that “[t]he lesson
    of National Neighbors is that dismissal of a suit in this court because of the Election
    Doctrine would be premature if a board of contract appeals has not yet determined the
    timeliness of an appeal before that board which presents the same claims”). The court
    held that because the board had not yet decided whether it had jurisdiction over States
    Roofing’s appeal, “dismissal of [its] complaint before this court [was] not yet ripe under
    the Election Doctrine.” Id. at 302; see id. at 300 (staying the case “pending either a
    specific jurisdictional determination by the [board] or a ruling on the merits by the
    board”). The timeliness issue presented in National Neighbors and States Roofing, the
    two cases upon which plaintiff relies, is not before this court.
    The court considers the case relied upon by defendant, Bonneville Associates,
    more analogous to the facts of this case. After appealing a contracting officer’s final
    decision to the applicable board of contract appeals, the plaintiff in Bonneville Associates
    moved to withdraw the appeal, and the board dismissed the appeal without prejudice.
    Bonneville Assocs., 43 F.3d at 651. Bonneville subsequently filed a complaint in this
    court, id., which the government moved to dismiss on the grounds that “Bonneville’s
    filing of a notice of appeal with the board was a binding election depriving the Court of
    Federal Claims of jurisdiction.” Id. at 653. Similar to plaintiff’s argument here,
    Bonneville argued “that the board lacked subject matter jurisdiction over its appeal and
    thus that Bonneville’s filing of a notice of appeal with the board was not a binding
    election.” Id. at 652. This court concluded that the board had jurisdiction over
    Bonneville’s appeal, and that, therefore, the election doctrine required dismissal of
    Bonneville’s action for lack of subject matter jurisdiction. Id. On appeal, the Federal
    Circuit observed that “[t]he pivotal question . . . is whether the board possessed
    jurisdiction over Bonneville’s initially filed appeal.” Id. at 653. The Federal Circuit
    agreed with this court’s analysis of the jurisdictional issue, and held that because the
    board had jurisdiction over Bonneville’s appeal, “the Court of Federal Claims properly
    applied the Election Doctrine to dismiss Bonneville’s action without prejudice for lack of
    subject matter jurisdiction.” Id. at 655.
    Unlike in National Neighbors and States Roofing, the plaintiff in this case does not
    have an appeal currently pending before the CBCA. Here, the appeal filed by plaintiff
    was dismissed by the CBCA without prejudice further to the parties’ joint motion to
    dismiss. 8 See supra Part I.B. Like the board in Bonneville Associates, the CBCA
    8
    The CBCA’s order of dismissal does not explicitly state whether plaintiff’s appeal
    was dismissed with or without prejudice. See Def.’s App. A53 (CBCA Order of
    Dismissal). The order states, in relevant part: “On October 9, 2012, the parties jointly
    moved to dismiss the appeal. Accordingly, [the appeal] is DISMISSED.” Id. As is
    discussed in more detail below in Part III.B, the joint motion to dismiss referred in the
    order was filed “[p]ursuant to CBCA Rule 12(d).” Id. at A52 (CBCA Joint Mot. to
    16
    dismissed plaintiff’s appeal without making a determination as to whether it possessed
    jurisdiction over the appeal. See supra Part III.A.2; Def.’s Reply 7 (observing that the
    board in Bonneville “did not make any jurisdictional decisions”). And, as the court did in
    Bonneville Associates, here the court examines whether the board had jurisdiction over
    plaintiff’s appeal, and, concluding that it did, dismisses plaintiff’s action for lack of
    subject matter jurisdiction. See Parts III.A.1.a–e. Thus, in accordance with the Federal
    Circuit’s guidance in Bonneville Associates, the court finds that plaintiff’s appeal to the
    CBCA was a binding election and that its claim before this court is ripe for dismissal.
    e.     Plaintiff’s Appeal to the CBCA Was “Informed, Knowing, and Voluntary”
    As a further argument, plaintiff contends that its decision to appeal to the CBCA
    “was not informed, knowing, and voluntary,” Pl.’s Resp. 14 (capitalization, emphasis and
    internal quotation marks omitted), because the contracting officer’s April 9, 2012 final
    decision “misled Palafox into believing that the decision could be appealed to the
    [CBCA],” id. at 7; see id. at 14 (arguing that the contracting officer “misrepresented the
    viability and/or availability of the forums”). 9 As plaintiff suggests, “[t]he Election
    Doctrine requires . . . the contractor’s choice of forum be informed, knowing, and
    voluntary.” Bonneville Assocs., 43 F.3d at 655 (internal quotation marks omitted). In
    addition, “a true ‘choice’ of forum . . . involve[s] . . . an informed exercise of the
    contractor’s right to elect between two or more alternative, coexisting, and viable
    remedies actually available to the contractor at the time of the election.” Olsberg
    Excavating Co. v. United States, 
    3 Cl. Ct. 249
    , 251 (1983).
    Dismiss). CBCA Rule 12(d) provides that “[w]hen circumstances beyond the control of
    the Board prevent the continuation of proceedings in a case, the Board may, in lieu of
    issuing an order suspending proceedings, dismiss the case without prejudice to
    reinstatement within 180 calendar days after the date of the dismissal.” CBCA Rule
    12(d). The court therefore understands that the CBCA dismissed plaintiff’s appeal
    without prejudice. Cf. infra Part III.B (finding that the order of dismissal without
    prejudice was converted to an order of dismissal with prejudice after neither party
    reinstated the case within 180 days).
    9
    Plaintiff urges that if the court lacks jurisdiction to hear its claim, then the
    contracting officer’s December 20, 2012 final decision advising plaintiff of its right to
    appeal to this court was also a misrepresentation. Pl.’s Resp. 14 n.8. This
    misrepresentation, plaintiff explains, allows a finding that “Palafox’s appeal to this Court
    . . . was not knowing and informed.” 
    Id.
     Because the court requests additional briefing
    on whether it possesses jurisdiction over plaintiff’s appeal of the contracting officer’s
    December 20, 2012 final decision, see infra Part III.A.2, this issue is not ripe for
    resolution.
    17
    The contracting officer’s April 9, 2012 final decision states, in part: “Pursuant to
    the Contract Disputes Act of 1978, this decision may be appealed to the [CBCA] . . . . In
    lieu of appealing to the [CBCA], you may bring an action directly to the U.S. Court of
    Federal Claims . . . .” Def.’s App. A10 (Apr. 9, 2012 final decision). Because the
    contracting officer’s April 9, 2012 decision was a final decision on a government claim,
    see supra Part III.A.1, plaintiff could have appealed the decision to either fora. The
    CBCA’s order dismissing plaintiff’s appeal without prejudice did not convert the CBCA
    into an unavailable or unviable forum. The court therefore is satisfied that plaintiff’s
    decision to appeal to the CBCA was informed, knowing and voluntary.
    Given the foregoing, the court concludes that the election doctrine bars the court
    from hearing plaintiff’s appeal of the contracting officer’s April 9, 2012 final decision.
    See supra Parts III.A.1.a–e. The court must therefore dismiss this claim for lack of
    jurisdiction. 10 See Bowers, 104 Fed. Cl. at 254 (“[I]f a contractor makes an informed,
    knowing, and voluntary decision to pursue its appeal in another forum with jurisdiction
    over the appeal, the Court of Federal Claims is required to dismiss a subsequently filed
    appeal concerning the same claim for lack of jurisdiction.”).
    2.     It Is Unclear Whether the Election Doctrine Bars the Court from Hearing
    Plaintiff’s Appeal of the Contracting Officer’s December 20, 2012 Final
    Decision
    10
    The court recognizes that the Contracts Disputes Act of 1978 (CDA) is a remedial
    statute that “was enacted to ‘provide[] a fair, balanced, and comprehensive statutory
    system of legal and administrative remedies in resolving Government contract claims.’”
    Winter v. FloorPro, Inc., 
    570 F.3d 1367
    , 1369 (2009) (quoting the CDA, S. Rep. No. 95–
    1118, at 1, reprinted in 1978 U.S.C.C.A.N. 5235, 5235). The court further recognizes
    that dismissal of plaintiff’s appeal of the contracting officer’s April 9, 2012 final decision
    may yield an unfair result. If the court lacks jurisdiction to hear plaintiff’s claim for
    $824,416.01, cf. infra Part III.A.2 (requesting additional briefing on whether the court
    possesses jurisdiction over plaintiff’s appeal of the contracting officer’s December 20,
    2012 final decision), then the merits of plaintiff claim may never be addressed by either
    the court or the CBCA—notwithstanding the fact that plaintiff diligently appealed two
    final decisions denying the claim to both fora. However, the court’s jurisdiction is
    limited by the language of the CDA, as interpreted by the United States Court of Appeals
    for the Federal Circuit. See, e.g., Bonneville Assocs. v. United States, 
    43 F.3d 649
    , 653
    (1994); Placeway Constr. Corp. v. United States, 
    920 F.2d 903
    , 906 (Fed. Cir. 1990),
    superseded by statute on other grounds, Court of Federal Claims Technical and
    Procedural Improvements Act of 1992, Pub. L. No. 102–572, § 907(b), 
    106 Stat. 4506
    ,
    4519; Nat’l Neighbors, Inc. v. United States, 
    839 F.2d 1539
    , 1542 (1988). Thus, as to
    plaintiff’s appeal of the contracting officer’s April 9, 2012 final decision, the court cannot
    avoid an unfair result given the limitations on the court’s jurisdiction.
    18
    In addition to appealing the contracting officer’s April 9, 2012 final decision,
    plaintiff also appeals the contracting officer’s December 20, 2012 final decision. Compl.
    ¶¶ 53–57 (Count Five); see Pl.’s Resp. 6 (stating that plaintiff “appeal[s] both the
    contracting officer’s April 9, 2012 final decision and the contracting officer’s December
    20, 2012 final decision”). Defendant’s briefing does not directly address whether the
    election doctrine bars the court from hearing plaintiff’s appeal of the contracting officer’s
    December 20, 2012 final decision.
    Defendant concedes, however, that it is “unaware of a basis to challenge the
    Court’s jurisdiction to entertain Palafox’s claim for $7,441.99.” Def.’s Mot. 9. Because
    the contracting officer’s April 9, 2012 final decision found plaintiff liable for
    $824,416.01 in damages, Def.’s App. A9 (Apr. 9, 2012 final decision), the additional
    $7,441.99 that plaintiff now seeks was not subject to the contracting officer’s April 9,
    2012 final decision, see Teller Envtl. Sys., Inc. v. United States, 
    802 F.2d 1385
    , 1389
    (Fed. Cir. 1986) (“[A]ll contract claims, whether by contractor against the government or
    vice versa, must be submitted to the contracting officer for decision.”). Therefore, as
    defendant correctly observes, the CBCA did not have jurisdiction over plaintiff’s
    $7,441.99 claim and the election doctrine does not bar the court from hearing this claim.
    Defendant’s admission that it is unaware of any jurisdictional hurdle to plaintiff’s
    $7,441.99 claim suggests that defendant is also unaware of any jurisdictional hurdle—
    whether presented by the election doctrine or otherwise—to plaintiff’s appeal of the
    contracting officer’s December 20, 2012 final decision denying plaintiff’s claim for
    $831,858. Plaintiff’s appeal of the contracting officer’s December 20, 2012 final
    decision is the only conceivable basis on which plaintiff’s $7,441.99 claim could be
    before the court. See 
    41 U.S.C. § 7104
    (b)(1) (providing that a contractor may appeal a
    contracting officer’s final decision to the Court of Federal Claims); cf. Sharman Co., 
    2 F.3d at
    1568–69 (“Under the CDA, a final decision by the contracting officer on a claim .
    . . is a jurisdictional prerequisite to further legal action thereon.” (internal quotation
    marks omitted)). If defendant is “unaware of a basis to challenge the Court’s jurisdiction
    to entertain Palafox’s claim for $7,441.99,” Def.’s Mot. 9, then, it is possible that
    defendant is also unaware of a basis to challenge the court’s jurisdiction to entertain
    plaintiff’s remaining claim for $824,416.01. However, because neither party directly
    addresses whether the court possesses jurisdiction over plaintiff’s appeal of the
    contracting officer’s December 20, 2012 final decision, the court requests supplemental
    briefing on this issue. See supra Part IV (establishing the supplemental briefing
    schedule).
    B.     Res Judicata
    The well-established legal doctrine of res judicata dictates that “a final judgment
    on the merits bars a second action involving the same parties and the same claim.” Ford-
    19
    Clifton, 
    661 F.3d at 660
    ; see Brown v. Felsen, 
    442 U.S. 127
    , 131 (1979) (“Res judicata
    prevents litigation of all grounds for, or defenses to, recovery that were previously
    available to the parties, regardless of whether they were asserted or determined in the
    prior proceeding.”). Res judicata “relieve[s] parties of the cost and vexation of multiple
    lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions,
    encourage[s] reliance on adjudication.” Allen v. McCurry, 
    449 U.S. 90
    , 94 (1980). The
    doctrine of res judicata is not limited to judgments issued by courts: “[W]hen an
    administrative agency is acting in a judicial capacity and resolve[s] disputed issues of fact
    properly before it which the parties have had an adequate opportunity to litigate, the
    courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah
    Constr. & Mining Co., 
    384 U.S. 394
    , 422 (1966).
    Defendant argues that plaintiff’s claim for $7,441.99, “and any others that could
    survive [its] jurisdictional motion[,] should be dismissed on res judicata grounds because
    the CBCA technically reached a final judgment on the merits of this case pursuant to
    CBCA Rule 12(d).” Def.’s Mot. 9. Rule 12(d) of the CBCA provides that the CBCA
    may “dismiss the case without prejudice to reinstatement within 180 calendar days after
    the date of dismissal.” CBCA Rule 12(d). Rule 12(d) of the CBCA further provides that
    “[w]hen a case has been dismissed without prejudice and neither party has timely
    requested that the case be reinstated, the case shall be deemed to be dismissed with
    prejudice on the last day such a request could have been made.” 
    Id.
     Of relevance here is
    the Federal Circuit’s teaching that “[a] dismissal with prejudice is a judgment on the
    merits for purposes of claim preclusion.” Pactiv Corp. v. Dow Chem. Co., 
    449 F.3d 1227
    , 1230 (Fed. Cir. 2006).
    The CBCA dismissed plaintiff’s appeal on October 17, 2012 further to the parties’
    joint motion to dismiss without prejudice. Def.’s App. A53 (CBCA Order of Dismissal).
    Because neither party requested that the case be reinstated within 180 days, the CBCA’s
    dismissal without prejudice was converted to a dismissal with prejudice on April 15,
    2013 by operation of CBCA Rule 12(d). See CBCA Rule 12(d); Pl.’s Resp. 17
    (conceding that “the dismissal of the board appeal became a dismissal with prejudice by
    operation of passage of time”).
    Plaintiff appealed the contracting officer’s December 20, 2012 final decision to
    this court on April 8, 2013, see Compl. 1, seven days before the CBCA’s October 17,
    2012 order of dismissal was converted to a final judgment on the merits. Thus, to the
    extent that this court possesses jurisdiction over the entirety of plaintiff’s appeal of the
    contracting officer’s December 20, 2012 final decision, cf. supra Part III.A.2 (requesting
    additional briefing on whether the court possesses jurisdiction over plaintiff’s appeal of
    the contracting officer’s December 20, 2012 final decision denying plaintiff’s claim for
    $831,858); Def.’s Mot. 9 (claiming that it is “unaware of a basis to challenge the Court’s
    jurisdiction to entertain Palafox’s claim for $7,441.99”), the court finds that res judicata
    20
    does not bar plaintiff’s appeal of the contracting officer’s December 20, 2012 final
    decision to this court, cf. Def.’s Reply 11 (conceding that res judicata would not have
    barred plaintiff from appealing the contracting officer’s December 20, 2012 final decision
    to the CBCA within 90 days); Def.’s App. A83 (Dec. 20, 2012 final decision) (stating
    that plaintiff could appeal the decision to the CBCA within 90 days or the Court of
    Federal Claims within twelve months). Moreover, given that plaintiff filed his Complaint
    before the CBCA’s October 17, 2012 order of dismissal was converted to a final
    judgment on the merits, it is not clear from the face of the Complaint at the time it was
    filed that res judicata, which is an affirmative defense, applies. The court therefore
    denies defendant’s Rule 12(b)(6) motion to dismiss on res judicata grounds. See Larson,
    89 Fed. Cl. at 382 (stating than an affirmative defense must “‘be clearly indicated and
    must appear on the face of the pleading to be used as the basis for the [Rule 12(b)(6)]
    motion.’” (quoting Wright & Miller, § 1357)); Corrigan, 82 Fed. Cl. at 304 (stating that
    res judicata is an affirmative defense for the purposes of a Rule 12(b)(6) motion to
    dismiss).
    IV.    Conclusion
    For the forgoing reasons, defendant’s motion to dismiss is GRANTED-IN-PART,
    STAYED-IN-PART, and DENIED-IN-PART. The court GRANTS defendant’s Rule
    12(b)(1) motion as to plaintiff’s appeal of the contracting officer’s April 9, 2012 decision
    (Count Four). See supra Part III.A.1. The court STAYS defendant’s Rule 12(b)(1)
    motion as to plaintiff’s appeal of the contracting officer’s December 20, 2012 decision
    (Count Five) pending the filing of the parties’ supplemental briefing. See supra Part
    III.A.2. The court DENIES defendants Rule 12(b)(6) motion and finds that the doctrine
    of res judicata does not bar plaintiff’s claim for $7,441.99 or any other claims that
    survive defendant’s Rule 12(b)(1) motion. See supra Part III.B.
    Further to Part III.A.2 above, defendant shall file a supplemental brief, not to
    exceed fifteen pages, on the issue of whether the election doctrine bars the court from
    hearing plaintiff’s appeal of the contracting officer’s December 20, 2012 final decision at
    or before 5:00 p.m. Eastern Standard Time (EST) on Monday, February 24, 2014.
    Plaintiff shall file a response to defendant’s brief, not to exceed ten pages, at or before
    5:00 p.m. EST on Monday, March 3, 2014, and defendant may file a reply to plaintiff’s
    response, not to exceed seven pages, at or before 5:00 p.m. EST on Friday, March 7,
    2014.
    IT IS SO ORDERED.
    s/ Patricia E. Campbell-Smith
    PATRICIA E. CAMPBELL-SMITH
    Chief Judge
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