Public Warehousing Company, K.S.C.
ASBCA No. 58088
| A.S.B.C.A. | Mar 7, 2017Background
- Public Warehousing Company, K.S.C. (PWC) appealed an ASBCA decision arising under Contract No. SPM300-05-D-3128; the Board had denied the government’s motion to dismiss but granted a stay because of a parallel criminal case.
- PWC moved to partially lift the one-year stay and filed a motion for reconsideration of the Board’s 8 December 2016 opinion.
- Alternatively, PWC sought certification for interlocutory appeal of (a) the Board’s 8 November 2016 opinion granting the government leave to amend its answer to assert affirmative defenses and (b) the December 2016 stay decision.
- The Board treated the stay-lifting request as a timely motion for reconsideration and evaluated whether it has statutory authority to certify interlocutory questions to the Federal Circuit.
- The Board declined to reconsider its December 2016 decision because PWC largely repeated previously rejected arguments.
- The Board further held it lacks authority to certify interlocutory questions under 28 U.S.C. § 1292 (and related provisions), rejected analogies to decisions of other tribunals, and denied PWC’s certification request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board should reopen or reconsider its Dec. 8, 2016 stay decision | PWC argued the stay should be partially lifted and repeated prior legal objections | Government defended the stay as proper given the parallel criminal case | Denied — motion for reconsideration rejected as rehash of arguments previously considered |
| Whether the ASBCA may certify interlocutory questions to the Federal Circuit under 28 U.S.C. § 1292(b) or (c) | PWC urged the Board can certify under § 1292(c)(1)/(d)(2) analogizing to AGBCA’s Shawn Montee and EDS | Government maintained § 1292 applies to courts (district courts) and does not grant boards certification power | Denied — Board lacks authority to certify interlocutory questions under § 1292(b)/(c) |
| Whether the Board can import Court of Federal Claims’ certification power via the CDA (41 U.S.C. § 7105(e)(2)) and 28 U.S.C. § 1292(d)(2) | PWC argued the CDA’s grant of relief equivalent to that in the CFC implies certification power | Government opposed expansive reading; certification power flows from statute to judges, not the Board | Denied — Board cannot assume CFC’s § 1292(d)(2) powers by inference from the CDA |
| Whether precedent (EDS, Shawn Montee) supports Board certification authority | PWC relied on EDS and Shawn Montee as support for broader interlocutory review | Government relied on Federal Circuit precedent limiting review to final board decisions (WH Moseley, Orlando Helicopter) | Denied — EDS fact pattern was exceptional; WH Moseley and Orlando Helicopter control and foreclose Board certification |
Key Cases Cited
- Dixon v. Shinseki, 741 F.3d 1367 (Fed. Cir.) (motions for reconsideration are not for relitigating previously rejected arguments)
- United States v. WH Moseley Co., 730 F.2d 1472 (Fed. Cir.) (Federal Circuit lacks jurisdiction to review nonfinal ASBCA interlocutory decisions)
- Orlando Helicopter Airways, Inc. v. Widnall, 51 F.3d 258 (Fed. Cir.) (Federal Circuit jurisdiction requires final Board decision)
- Electronic Data Sys. Corp. v. GSBCA, 792 F.2d 1569 (Fed. Cir.) (interlocutory review of a GSBCA injunction arose from an unusual procedural posture, not a Board certification power)
- Fidelity Constr. Co. v. United States, 700 F.2d 1379 (Fed. Cir.) (limitations on importing court powers to administrative tribunals)