Sufi Network Services, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
SUFI NETWORK SERVICES, INC.,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2015-5151
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-cv-00804-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: March 29, 2016
______________________
FREDERICK W. CLAYBROOK, JR., Crowell & Moring,
LLP, Washington, DC, for plaintiff-appellee. Also repre-
sented by BRIAN TULLY MCLAUGHLIN.
DOUGLAS T. HOFFMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellant. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
STEVEN J. GILLINGHAM.
_____________________
Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.
2 SUFI NETWORK SERVICES, INC. v. US
TARANTO, Circuit Judge.
This government contract case returns to us after the
completion by a contract appeals board of the remand
proceedings that we ordered in 2014. The board reached
its final decision in early 2015, and the private contractor
promptly accepted the decision. When the United States
challenged its own board’s decision, the Court of Federal
Claims dismissed the challenge. We affirm.
BACKGROUND
As the parties agree, this case is governed by the
Wunderlich Act, codified at 41 U.S.C. §§ 321–322 before
its repeal in 2011. Under a contract with the Air Force,
SUFI Network Services, Inc. invested money to build and
to operate telephone systems at certain Air Force bases
and was to earn returns on that investment for fifteen
years (for each installation) from per-call charges, the
revenue to be shared with the Air Force. The Air Force
breached the contract in various ways by allowing con-
tractually prohibited diversions of calls from the SUFI
phones, depriving SUFI of revenue. See SUFI Network
Servs., Inc. v. United States, 755 F.3d 1305, 1309–10 (Fed.
Cir. 2014) (2014 CAFC Decision).
Following the contractually prescribed process for
dispute resolution, SUFI brought claims against the Air
Force, and the Armed Services Board of Contract Appeals
(Board or ASBCA) rendered a decision on those claims.
The Board found breach and awarded roughly $2.8 mil-
lion (plus interest) on one group of claims and roughly
$4.6 million (plus interest) on another. See J.A. 3899–
3900. The award on the first group of claims became final
and has not been at issue since then. SUFI was dissatis-
fied with the Board’s damages determinations on the
second group of claims, so it sued the United States in the
Court of Federal Claims to challenge those determina-
tions on numerous grounds, invoking the standards of
review set by the Wunderlich Act. See S & E Contractors,
SUFI NETWORK SERVICES, INC. v. US 3
Inc. v. United States, 406 U.S. 1, 3 n.1 (1972); United
States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 427
n.3 (1966); United States v. Carlo Bianchi & Co., 373 U.S.
709, 709 n.1 (1963). The United States filed no counter-
claims to challenge any aspect of the Board’s decision,
including the rulings on breach and damages.
After the Court of Federal Claims granted SUFI re-
lief, SUFI Network Servs., Inc. v. United States, 108 Fed.
Cl. 287, 321 (2012) (2012 CFC Decision), the United
States appealed several of that court’s rulings to this
court. SUFI cross-appealed to obtain more relief on a few
points. The United States sought to reinstate a variety of
Board determinations on damages, but it asked in the
alternative that this court order a remand for the Board
to exercise its “wide discretion” in fact-finding if this court
agreed with SUFI that the Board had committed errors
that prejudiced SUFI. See Brief for Defendant-Appellant,
The United States at 26, 33–34, 38, SUFI Network Servs.,
Inc. v. United States, 755 F.3d 1305 (Fed. Cir. 2014) (Nos.
2013-5039, -5040) (2014 U.S. Br.); Reply and Response for
Defendant-Appellant at 30, SUFI Network Servs., Inc. v.
United States, 755 F.3d 1305 (Fed. Cir. 2014) (Nos. 2013-
5039, -5040) (2014 U.S. Reply Br.).
Our 2014 CAFC Decision was governed by the same
standard of review of the Board’s rulings as governed in
the Court of Federal Claims. We held that the Court of
Federal Claims had not properly applied that standard in
several respects. And, when we applied the proper stand-
ard of review to the Board’s rulings, we agreed with a
number, though not all, of SUFI’s assertions of prejudicial
error by the Board. We ordered the Court of Federal
Claims to remand the case to the Board for further pro-
ceedings on certain issues bearing on SUFI’s challenges.
The Board conducted the remand proceedings and
reached a decision in early 2015. SUFI Network Servs.,
Inc., ASBCA No. 55306, 15-1 BCA ¶ 35,878, J.A. 3899–
4 SUFI NETWORK SERVICES, INC. v. US
3924, modified on reconsideration, SUFI Network Servs.,
Inc., No. ASBCA 55306, 15-1 BCA ¶ 35,992, J.A. 3925–
3933. The new Board decision, though not giving SUFI
all it sought on the claims at issue, was much more favor-
able to SUFI than the earlier Board decision on those
claims: it awarded roughly $113 million (plus interest)
rather than the original amount of roughly $4.6 million
(plus interest). Indeed, the new decision was favorable
enough that SUFI filed in the Court of Federal Claims, in
the docket of the Wunderlich Act case that had produced
the remand to the Board, a notice stating that it accepted
the 2015 Board decision.
The United States, however, was dissatisfied with its
own Board’s decision. It filed with the Court of Federal
Claims, in the same docket, a request for review of the
new award. The Court of Federal Claims denied the
request. SUFI Network Servs., Inc. v. United States, 122
Fed. Cl. 257, 263 (2015) (2015 CFC Decision).
The Court of Federal Claims explained that, as rele-
vant here, “[u]nder the Wunderlich Act, only the contrac-
tor has the right to appeal from a Board decision.” 2015
CFC Decision, 122 Fed. Cl. at 259. The basis for that rule
is the exchange embodied in the contract between SUFI
and the Air Force, which includes a “standard ‘Disputes’
clause” under which SUFI gave up its rights to cease work
if a dispute arose and both SUFI and the government
agreed that “ ‘the decision of the Board shall be final and
conclusive.’ ” See id. at 261. 1 The “trade-off” is the con-
1 The 2015 CFC Decision quotes the disputes clause
included in the April 1996 contract:
DISPUTES (1979 DEC)
a. Except as otherwise provided in this contract,
any dispute or claim concerning this contract
which is not disposed of by agreement shall be de-
SUFI NETWORK SERVICES, INC. v. US 5
tractor’s promise to stay on the job and the United States’
commitment “to be bound by board decisions favorable to
the contractor.” Id. at 262.
cided by the Contracting Officer, who shall state
his decision in writing and mail or otherwise fur-
nish a copy of it to the Contractor. Within 90 days
from the date of receipt of such copy, the Contrac-
tor may appeal by mailing or otherwise furnishing
to the Contracting Officer a written appeal ad-
dressed to the Armed Services Board of Contract
Appeals, and the decision of the Board shall be fi-
nal and conclusive; provided that if no such appeal
is filed, the decision of the Contracting Officer
shall be final and conclusive. The Contractor shall
be afforded an opportunity to be heard and to offer
evidence in support of any appeal under the
clause. Pending final decision on such a dispute,
however, the Contractor shall proceed diligently
with the performance of the contract and in ac-
cordance with the decision of the Contracting Of-
ficer unless directed to do otherwise by the
Contracting Officer.
b. This ‘Disputes’ clause does not preclude con-
sideration of law questions in connection with de-
cisions provided for in paragraph “a” above,
provided, that nothing in this contract shall be
construed as making final the decision of any ad-
ministrative official, representative, or board on a
question of law.
2015 CFC Decision, 122 Fed. Cl. at 261; see Jt. App. (2014
J.A.) at 1537, SUFI Network Servs., Inc. v. United States,
755 F.3d 1305 (Fed. Cir. 2014) (Nos. 13-5039, -5040) (2001
version, identical except “90” replaced by “30”).
6 SUFI NETWORK SERVICES, INC. v. US
The Court of Federal Claims stated that, under clear
precedents now more than 35 years old, “the United
States d[oes] not have the right to seek review of an
adverse board of contract appeals’ decision” where, as
here, there is no claim of fraud or bad faith on the part of
the Board and the contractor fully accepts the decision.
Id. at 261–62; see S & E, 406 U.S. at 8; id. at 20
(Blackmun, J., with whom Burger, C.J., and Stewart and
Powell, JJ., join, concurring); Roscoe-Ajax Constr. Co. v.
United States, 499 F.2d 639, 644–47 (Ct. Cl. 1974); Fisch-
bach & Moore Int’l Corp. v. United States, 617 F.2d 223,
225–28 (Ct. Cl. 1980). 2 The cited cases make clear one
policy underlying that rule: reducing contract costs to the
government by avoiding the prospect, for contractors, of
costly litigation and delay in payment after “the only
agency empowered to act [has] determined that [the
contractor] [i]s entitled to payment.” S & E, 406 U.S. at
8; Roscoe-Ajax, 499 F.2d at 644 n.6; see 2015 CFC Deci-
sion, 122 Fed. Cl. at 262. The Court of Claims long ago
summarized the Wunderlich Act rule: in the absence of
fraud or bad faith, “the boards [a]re the agencies and [a]re
also the Federal Government.” Fischbach & Moore, 617
F.2d at 226.
Applying those principles, the Court of Federal
Claims in this case concluded: “The Air Force designated
the ASBCA as its authorized representative for disputes
2 Roscoe-Ajax recognizes that, even if there is no
fraud or bad faith, the United States may assert a coun-
terclaim challenging a Board ruling in limited circum-
stances—where the counterclaim is just one “facet” of a
single specific dispute that the contractor “is still keep-
ing . . . alive in court.” 499 F.2d at 646. That principle is
doubly inapplicable here: the United States asserted no
counterclaims in this case; and in any event the “specific
dispute is over because the contractor is satisfied.” Id.
SUFI NETWORK SERVICES, INC. v. US 7
arising under the contract. For purposes of this case, the
‘United States’ is the ASBCA, not the Department of
Justice,” 2015 CFC Decision, 122 Fed. Cl. at 262, whose
duty “ ‘is to implement [the Board’s] decision and not to
repudiate it,’ ” id. (alteration by Court of Federal Claims)
(quoting S & E, 406 U.S. at 13). And:
SUFI has indicated its satisfaction with the
Board’s decision. By SUFI’s contract with [the Air
Force], the Board served as the authorized repre-
sentative of the United States. The sole responsi-
bility of the Department of Justice is to implement
the Board’s decision. The fact that the Depart-
ment of Justice is dissatisfied with the Board’s
remand decision is immaterial to the Court’s
analysis. In assessing whether the Board followed
the remand instructions of the Federal Circuit, it
is enough to say that the Board obviously did
what it was told. The Board promptly conducted
the remand proceedings directed by the Federal
Circuit. The Government cannot reject the
Board’s decision, and it has no right to challenge
the merits of the Board’s remand decision. SUFI’s
satisfaction with the Board’s remand decision is
the end of the line.
Id. at 262–63.
The United States appeals. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3) to review the final decision of
the Court of Federal Claims dismissing the case.
DISCUSSION
SUFI moved to dismiss or for summary affirmance.
Based on the initial and supplemental briefing submitted
by the parties, we affirm.
We need not repeat the recitation given just above of
the legal principles established by the S & E line of prec-
8 SUFI NETWORK SERVICES, INC. v. US
edents, including Roscoe-Ajax and Fischbach & Moore.
Under that body of law, it is clear that the United States
could not seek review of the new Board decision if that
decision were the Board’s initial decision and SUFI did
not challenge it under the Wunderlich Act, as there is no
alleged fraud or bad faith by the Board. Here, the Board’s
new decision is not the first Board decision in the case.
But we have been offered no good reason why that fact
provides a basis for a different conclusion under the S & E
line of authority.
The new decision is no less the position of the United
States just because it is not the initial decision. Under its
contract with SUFI, embodying an exchange of promises
defining the dispute-resolution process, the United States
is bound by the position now articulated by the Board
acting in good faith and without fraud after an extensive
and vigorously contested process. Holding the United
States to its Board-determined position is a straightfor-
ward application of the long-established S & E line of
authority and of the Wunderlich Act policy it implements:
“respect for the parties’ rights to contract and to provide
for their own remedies.” Anthony Grace & Sons, 384 U.S.
at 429; see id. at 430 (“[T]he inadequacy or unavailability
of administrative relief must clearly appear before a party
is permitted to circumvent his own contractual agree-
ment.”).
The United States suggests that a different conclusion
is warranted because “the Wunderlich Act was repealed”
in 2011 and the Contract Disputes Act of 1978, 41 U.S.C.
§§ 7101–7109—which partly replaced the Wunderlich Act
(well before that Act’s final repeal)—“clearly does author-
ize Government appeal” of adverse Board decisions. Def.-
Appellant’s Resp. to Pl.-Appellee’s Mot. to Dismiss for
Want of Jurisdiction and Mot. for Summary Affirmance at
12, ECF No. 18. The conclusion urged does not follow
from the premises. The repeal of the Wunderlich Act
certainly means that the legal issues presented here are
SUFI NETWORK SERVICES, INC. v. US 9
of little if any future significance. But neither the repeal
of the Act nor the distinct provisions of a different statute
that is inapplicable here (and that co-existed with the
Wunderlich Act for three decades, starting before Fisch-
bach & Moore was decided) provides any basis for reject-
ing a straightforward application of the precedents under
the Wunderlich Act.
The United States makes one other argument to avoid
being bound by the Board decision. It contends that it
should be permitted to challenge the contractor-accepted
Board decision so that the Court of Federal Claims and
this court may ensure that the Board complied with this
court’s 2014 mandate. We see no sound basis for that
contention.
The United States cites no authorities that are on
point. It cites only decisions from quite different settings
that make familiar, general points about mandate com-
pliance. 3 None of those decisions were rendered in cases
that arose under the Wunderlich Act or involved a con-
tract disputes clause like the one here. And none address
a mandate-compliance argument in circumstances like
the ones in this case—where the government took a
(contract) position that the adverse party challenged in
court; the challenger secured a remand for the govern-
ment (Board) to reconsider certain matters decided ad-
3 The United States cites the following decisions:
Banks v. United States, 741 F.3d 1268, 1276 (Fed. Cir.
2014); Federal Trade Commission v. Standard Education
Society, 97 F.2d 513, 513 (2d Cir. 1938); Briggs v. Penn-
sylvania Railroad Co., 334 U.S. 304, 306 (1948); United
States v. Terminal Railroad Association of St. Louis, 236
U.S. 194, 199 (1915); and Northern Helex Co. v. United
States, 634 F.2d 557, 560 (Ct. Cl. 1980) (citing General
Atomic Co. v. Felter, 436 U.S. 493, 497 (1978); In re San-
ford Fork & Tool Co., 160 U.S. 247, 255 (1895)).
10 SUFI NETWORK SERVICES, INC. v. US
versely to the challenger; and on remand the government
(Board) reached a decision that the challenger fully ac-
cepted and that, had it been made originally, the govern-
ment could not challenge in court.
The argument for a “mandate compliance” exception
to the clear and long-settled Wunderlich Act doctrine not
only lacks support in precedent. The argument also is
contrary to the simple, established basis of that doctrine.
All of the rights and duties at issue are contract rights
and duties that are within the broad power of the parties
to determine by agreement among themselves. That is
what has now occurred: the United States, through its
designated representative, i.e., the Board, acting in good
faith and without fraud, has taken a position on those
contract matters, and SUFI accepts that position. Under
these circumstances, the Wunderlich Act line of authori-
ties, applied to the disputes clause at issue, makes bind-
ing on the United States the contract position that it has
taken through its contractually specified decision-maker.
In any event, even if we were to find a “mandate com-
pliance” exception to the Wunderlich Act doctrine, we
would not find any violation of this court’s 2014 mandate
by the 2015 Board decision in this case. We consider the
scope of our mandate and whether it was violated de
novo. See Cardiac Pacemakers, Inc. v. St. Jude Med.,
Inc., 576 F.3d 1348, 1355 (Fed. Cir. 2009). “After our
mandate issues, the mandate rule forecloses reconsidera-
tion of issues implicitly or explicitly decided on appeal.
For an issue to be implicitly decided, it must be decided by
necessary implication. Moreover, in interpreting this
court’s mandate, both the letter and the spirit of the
mandate must be considered.” TecSec, Inc. v. Int’l Bus.
Machs. Corp., 731 F.3d 1336, 1341–42 (Fed. Cir. 2013)
(internal quotation marks and citations omitted); see
Retractable Techs., Inc. v. Becton Dickinson & Co., 757
F.3d 1366, 1371 (Fed. Cir. 2014); Amado v. Microsoft
Corp., 517 F.3d 1353, 1364 (Fed. Cir. 2008); Engel Indus.,
SUFI NETWORK SERVICES, INC. v. US 11
Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir.
1999). We find no mandate violation here.
Nothing in this court’s mandate in 2014—nothing in
our 2014 CAFC Decision or the specific descriptions of
what was to be done on remand—altered the long-
established rule that the United States is bound by its
own Board’s determinations under the disputes clause
where there is no claim of fraud or bad faith on the part of
the Board and the contractor accepts those determina-
tions. To permit the United States to challenge the 2015
Board decision would require that the United States be
relieved of the obligation to respect its own Board’s deci-
sion in these circumstances. This court did not grant the
United States any such relief.
Moreover, the court in its 2014 decision did not give
the United States any rights in the Board proceedings,
substantive or procedural, that the Board did not already
recognize. Indeed, the United States did not ask for any
relief against the Board. This court did not restrict the
Board’s authority to hold the United States to any waiv-
ers or forfeitures of arguments, or require the Board to
consider arguments the United States did not present to
this court, or forbid the Board to rely on the existing
record in deciding the remanded questions. Nor did the
court constrain the Board’s “wide discretion” regarding
either the weighing of evidence to find facts (2014 U.S. Br.
26) or the recitation of evidence and contentions when
explaining its findings of fact. See, e.g., Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974) (court upholds “a decision of less than ideal clarity
if the agency’s path may reasonably be discerned”);
Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007) (court presumes that a fact-finder reviews all the
evidence presented, even evidence not discussed by the
fact-finder); Gonzales v. West, 218 F.3d 1378, 1381 (Fed.
Cir. 2000); Medtronic, Inc. v. Daig Corp., 789 F.2d 903,
906 (Fed. Cir. 1986).
12 SUFI NETWORK SERVICES, INC. v. US
Because a mandate is to be construed by considering
the context, we note that no United States counterclaims
for relief against the Board were before us in 2014 and
this court’s 2014 rulings as to deficiencies in the Board’s
decisions on several issues all concerned deficiencies
creating potential prejudice to SUFI. Of course, as to
those deficiencies, this court agreed with the United
States that the Court of Federal Claims had erred in
several respects, e.g., regarding the burden of proof on
certain aspects of the damages determination and the
making of factual findings itself rather than remanding to
the Board. See, e.g., 2014 CAFC Decision, 755 F.3d at
1311–13, 1319–20, 1321, 1323. But, as to the burden of
proof, this court recognized that “the Board” itself “did not
err in placing the burden on SUFI to prove its damages.”
Id. at 1313. More generally, all of this court’s remand
directives came in the context of explanations that the
Board had not given SUFI’s arguments and evidence their
due.
Even if we were to read some of this court’s explana-
tions of Board deficiencies as mandates to the Board
favoring the United States, we would not find that the
Board in 2015 committed a mandate violation. The
United States points to a passage in this court’s 2014
decision stating that “the Board failed to consider wheth-
er an adverse inference should be drawn against the
government” concerning damages, citing Bigelow v. RKO
Radio Pictures, Inc., 327 U.S. 251, 265 (1946). 2014
CAFC Decision, 755 F.3d at 1315. As relevant here,
however, the most we did was to order the Board to
consider the adverse-inference question in light of Bige-
low. We also noted—what cannot help the United
States—that “the Air Force failed to maintain [certain
call] records even though it was on notice of this potential
contract dispute.” Id. The Board on remand duly consid-
ered the question in light of Bigelow. J.A. 3906, 3926–27.
SUFI NETWORK SERVICES, INC. v. US 13
The United States also points to the burden-of-proof
discussion in our 2014 decision. 2014 CAFC Decision, 755
F.3d at 1312–13. But the Board on remand specifically
noted that its adverse-inference conclusion “did not dis-
pense with SUFI’s burden of proof of damages,” a burden
it had recognized even before this court’s 2014 decision.
J.A. 3927. The Board similarly followed this court’s
directive to consider the role of “official” calls under the
contract between SUFI and the Air Force. 2014 CAFC
Decision, 755 F.3d at 1316. The Board found that SUFI
was contractually entitled to charge for such calls, and so
such calls must be included among the compensable calls
lost to SUFI by the Air Force’s contract-breaching diver-
sion of calls from SUFI phones. J.A. 3905. And the Board
calculated damages under Count XVI for 15-year terms
“from the date of completion and acceptance of the tele-
phone system at each site,” 2014 CAFC Decision, 755 F.3d
at 1322. See J.A. 3918–22, 3928. This court in 2014
mandated nothing about “cut-over” dates, which the
United States invokes in criticism of the 2015 Board
decision. 4
The most general sources of the United States’ argu-
ments about a mandate violation are passages in the
court’s discussion of Counts III and V. On both counts,
this court found that the Board had inadequately consid-
4 The United States made no argument about “cut-
over” dates in the 2014 appeal. See 2014 U.S. Br. 35–38;
2014 U.S. Reply Br. 35. When the United States observed
in passing that there were factual issues about when
“acceptance” occurred, 2014 U.S. Br. 38, it cited only 2014
J.A. at 3836. That page comes from the parties’ Joint
Comments on a draft version of the 2012 CFC Decision; in
Attachment A of the Joint Comments, the parties gave
various figures and stated that they agreed regarding the
Count XVI calculation. 2014 J.A. at 3812 n.1.
14 SUFI NETWORK SERVICES, INC. v. US
ered SUFI’s evidence that it lost far more profits than the
Board had initially found. 2014 CAFC Decision, 755 F.3d
at 1316, 1318. One passage, discussing Count III, con-
cerned whether the higher price of in-room calls on SUFI
phones might make the number of (improperly available)
hallway/lobby phone minutes an overestimate of lost
SUFI minutes. This court said that the Board had not
attempted to “assess the magnitude of any purchase-
limiting effect or, more basically, consider all relevant
real-world record facts that might affect whether, in this
context, it might even be the case that, on balance, fewer
minutes were spent on hallway/lobby calls than would
have been spent on calls made from guest rooms (in the
absence of hallway/lobby phones), despite the higher cost
of in-room [SUFI] calls.” Id. at 1316. Because of that
deficiency, Count III was “remanded to the Board for
reconsideration.” Id. Similarly, the court found a defi-
ciency in the Board’s consideration of SUFI’s evidence
regarding Count V and so “order[ed] a remand to the
Board for reconsideration of whether SUFI’s evidence
provided a reasonably certain estimate—a fair and rea-
sonable approximation—of damages from this breach.”
Id. at 1318.
We have to generalize those passages beyond their
terms to treat them as mandates running in the United
States’ favor, but even if we do so, we see no mandate
violation. The Board in 2015 gave the issues the recon-
sideration this court ordered, all as part of the overall
question of whether SUFI proved a reasonable estimate of
its damages. J.A. 3902–10, 3926–30; see, e.g., J.A. 3906
(“we hold that one can reasonably determine from the
x.4619 long distance call data SUFI’s lost revenues at-
tributable to hallway/lobby” phones, “except for Rhein
Main and Spangdahlem calls”), J.A. 3927 (referring to
“our [the Board’s] holding that SUFI’s surrogate phone
X.4619 call data evidence was a reasonable estimate of
Count III damages and our rejection of the government’s
SUFI NETWORK SERVICES, INC. v. US 15
‘real-world record facts’ which do not support its theories
of discounted damages and revenue comparisons”). The
United States in this case has relied on this court’s obser-
vation that “the amount of damages to award ‘is not an
exact science, and the methodology of assessing and
computing damages is committed to the sound discretion
of the [trier of fact].’ ” Ferguson Beauregard/Logic Con-
trols v. Mega Sys., LLC, 350 F.3d 1327, 1345 (Fed. Cir.
2003), quoted at 2014 U.S. Reply Br. 30.
The United States’ mandate-violation contention now
rests ultimately on a criticism of the Board for not suffi-
ciently discussing each of the United States’ specific
evidentiary arguments. But there is no such requirement
in this court’s 2014 mandate, and “[w]e presume that a
fact finder reviews all the evidence presented unless [it]
explicitly expresses otherwise.” Medtronic, 789 F.2d at
906; see Newhouse, 497 F.3d at 1302; Gonzales, 218 F.3d
at 1381. Given how exhaustively the competing infer-
ences from evidence were contested and examined in the
numerous rounds of this dispute-resolution process, there
may not be grounds for disturbing the Board decision here
even under the standards of review applicable outside the
mandate-compliance context. Regardless, there is no
mandate violation.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Federal Claims is affirmed.
AFFIRMED