*2 *, Judge, Before MICHEL Chief ** LINN, Judges. MAYER and Circuit MICHEL, Judge. Chief Management of Personnel Office (“OPM”) appeals the United States Dis trict Court the Eastern District denial of its motion to dismiss for Texas’s and its motion to separate transfer venue of Federal Claims. United States Court Choice, Health L.C. v. Pers. Tex. Office of (E.D.Tex. Mgmt., No. 90:03cv14 Mar. 2004) (“March Order”). The was appeal argument after oral on Decem submitted Because Texas Health’s suit ber 2004. governed exclusively by against OPM is resolution scheme set forth (“CDA”) codi the Contract 601-613, §§ at 41 under which fied file suit contest Texas Health could only in denial of its contract claim Claims, of Federal United States Court court, not in district we reverse the district * ** Mayer position Paul R. Robert vacated the Michel assumed the of Chief Haldane Judge December on December of Chief on FEHBA respect court’s decision with to venue and the contract mirrors language of the Final Regulation specifi- transfer to the of Feder- remand for cally provides: al which has exclusive
In the this contract event is not re- newed, neither the Government nor the BACKGROUND *3 any adjust- Carrier shall be entitled to A. Texas Health’s Contract with ment or claim for the difference between OPM subscription prior rates to rate rec- Health, contracted OPM with Texas onciliation and actual subscription management organization, pro- health rates.
vide health care services to federal em- The rationale regulation behind this and and retirees in Texas under the ployees corresponding contract provision is Employees Federal Health Benefits get that “it is difficult to adequate data (“FEH- §§ codified at 5 U.S.C. 8901-8914 plans they from when have terminated.” BA”). As a services contract with the (1996). Fed.Reg. government, FEHBA 2001, In the interim compensation rates governed by contract is the CDA. Under paid by OPM to Texas Health were contract, the terms of the FEHBA OPM $622,246 lower than the actually rates annually compensation negotiates the rates charged similarly-situated to a subscriber and benefits with each contractor. Each group. paid OPM thus May, proposes a contractor interim com- $622,246 following reconciliation. After pensation upcoming rates to OPM for the receiving payment, this Texas Health de- year. compensation The interim cided to exit FEHBA program and represent rates a contractor’s estimate of gave notice In response, to OPM. OPM charge similarly-sized the amounts it will requested Texas Health to return the rec- group. subscriber $622,246, payment onciliation invoking 3.2(b)(6). following April,
The the contractor and Clause Texas Health refused. OPM reconcile the estimated interim com- OPM then premium payment reduced its pensation rates with the rates that to Texas Health for December 2001 actually charged $622,246. contractor to the similar- ly-sized If group. subscriber the interim In January Texas Health submit- compensation rates were lower than the ted a claim to certified the OPM contract- actually charged similarly-
rates ing officer demanding payment of the group, sized subscriber then pays OPM $622,246withheld from the December 2001 If, to the contractor. difference how- premium payment. respond OPM did not ever, compensation the interim -rates were and, result, aas the claim was deemed higher actually charged than the rates pursuant denied to the CDA. similarly-sized group, then subscriber the contractor reimburses the difference to Proceedings B. Prior Court OPM. In January Texas Health filed suit FEHBA provides contract further in OPM the United States District year Texas, that in final the Court for the Eastern District of process reconciliation alleging occurs line with that it was entitled to a declarato- (“Final an OPM-promulgated regulation ry judgment Regula- that the Final Year See 48 C.F.R. Regulation”). on its or applied was invalid face 1652.216-70(b)(6). 3.2(b)(6) Specifically, Clause to Texas Health. ever, complained Health that the Final Year that OPM’s motion to transfer venue Regulation conflicts a particular with sec- premised jurisdiction, is on a want of FEHBA, 8902(i), tion of the ground presented same substantive provides plans which that health are to be OPM’s motion to dismiss. compensated “reasonably rates equitably reflect the cost of the bene- DISCUSSION provided.” fits argues OPM that the Court of Fed In April OPM filed a motion to eral Claims has exclusive over dismiss the for lack of Texas Health’s challenge validity to Fed. the Final Year Regulation the un because 12(b)(1). In R.Civ.P. June OPM derlying FEHBA governed by contract is *4 a separate filed motion to transfer venue the CDA and provides the CDA for a to the Court of Federal pursuant Claims dispute process resolution wherein claim § 28 U.S.C. 1631 upon based a want of by denied a contracting may officer either appealed appropriate be agency The delegated district court the issue of litigated board or in the Court of Federal jurisdiction and venue to a magistrate Claims.
judge for consideration. magistrate responds that the district judge ultimately issued an report amended correctly determined that it had sub- recommendation, concluding that fed- ject jurisdiction matter under 28 U.S.C. question jurisdiction eral existed in the 1331, § general the question federal stat- district court § under 28 U.S.C. 1331 and ute. As an ground alternative to affirm the United immunity States waived the district court’s denial of OPM’s mo- from suit under the Administrative Proce- venue, tions to dismiss and transfer Choice, dure Act. Tex. Health v. L.C. U.S. Health asserts that the district court has 9:03CV14, Mgmt., Pers. No. slip Office of subject jurisdiction matter under 5 U.S.C. (E.D.Tex. 2004). op. at 13 Feb. Ac- § jurisdictional provision the of the cordingly, magistrate the judge recom- FEHBA. mended that the deny district court both OPM’s motion to dismiss and its motion to agree We with OPM that under transfer. Id. CDA, the the Court of Federal Claims has jurisdiction exclusive over
The district court Texas Health’s adopted mag against suit OPM judge’s relating validity istrate report amended and recom the Final Regulation mendation incorporated and issued a brief deny order ing Order, both of into the FEHBA OPM’s March as motions. Clause 3.2(b)(6). slip op. appeals at 2. OPM That that order. is because We jurisdiction have over the claim is related to district court’s the FEHBA contract. denial of OPM’s motion to exclusively transfer “The CDA governs venue Govern to the Court of Federal Claims to ment contracts and Government contract 1292(d)(4)(A). § 28 Indus., U.S.C. disputes.” We do not Cecile Cheney, Inc. v. have (Fed.Cir.1993). to address the district 995 F.2d 1055 Put “[wjhen court’s denial of differently, OPM’s motion to dismiss Disputes Contract for applies, be Act it provides the exclusive mech cause that denial is not an appealable resolution; in anism for the Contract terlocutory § order under 28 U.S.C. Act designed was not to serve as 1295(a)(1). See note, § how- We an alternative remedy, administrative
899 CDA, junction option.” purports at the contractor’s Dal available to make Lines, Inc., 50 F.3d v. Van the Court of Federal Claims the exclusive ton Sherwood (Fed.Cir.1995). hearing disputes trial court for gov over ernment contracts that fall under forth Section 605 of CDA sets Quality Tooling, CDA.” Inc. United process resolving by claims a con States, (Fed.Cir. 47 F.3d 1572-73 relating tractor the United States 1995). We likewise have stated: providing pertinent part: to a provides The CDA alternative forums All a contractor against claims challenging a [contracting officer’s] government relating to a contract shall final decision: may a contractor file an in writing be and shall be submitted to appeal with the appropriate board of contracting officer for a decision. (1988), appeals, § 41 U.S.C. 605(a) (2000) (emphasis add- U.S.C. directly or appeal to the Court of Feder- ed). Section 609 the CDA addresses 609(a)(1) al (Supp. V judicial a contracting review of officer’s 1993). consistently Courts have inter- decision, providing pertinent part: preted providing CDA the con- appealing lieu of [I]n tractor with an either-or choice of fo- contracting [41 officer under section *5 rum. board, § a agency U.S.C. to an 605] States, Bonneville Assocs. v. United 43 may bring directly contractor an action (internal (Fed.Cir.1994) F.3d 653 cita on the claim in the United States added).2 emphasis tions omitted and States Court of [United Claims Court Hence, there is no other alternative such Claims], notwithstanding any Federal purpose as the district courts. The provision, regulation, contract or rule of centralizing government the resolution of contrary.
law the to disputes in the Court Federal 609(a)(1) (2000) § 41 (emphasis U.S.C. court, than in rather district is to added). precludes Section 609 thus a con- uniformity government national in ensure court; in a filing tractor from suit district Cisneros, law. See Katz v. 16 may only in contractor file suit the Court (Fed.Cir.1994). F.3d of Federal Claims. case, In present the Texas Health sub- $622,246
Notably, recoup Section 609 of the mitted a claim to the rec- CDA in operates thought tandem with the Tucker Act to onciliation amount it due under jurisdiction appropriate confer over such actions on the the contract to the OPM con- tracting contracting Court of Federal Claims.1 We have ac officer. The officer knowledged claim, in “the Tucker con- did not issue a decision on the caus- specifically 1. The Tucker Act under 6 of that Act U.S.C. [41 states: section § 605]. The Court of Federal Claims shall have 1491(a)(2) (2000). § jurisdiction judgment upon any to render with, by against, dispute claim or or a con- prior publica- 2. The Bonneville court cited to 10(a)(1) arising tractor under section of the tions of the United States Code. The relevant Contract Act of 1978 U.S.C. [41 portions and 609 of CDA 609(a)(1) ], of Sections 606 the including a concern- not, however, since have been amended the ing rights termination of a in Therefore, the relied CDA was enacted. text tangible intangible property, compliance or standards, upon by accounting the Bonneville court is identical to with cost and other appears nonmonetary disputes the text that in the current version of on which a decision contracting of the officer has been issued the United States Code dated 2000. ing ingly, it to be “deemed denied.” we hold that the district court See erred 605(c)(5) (2000) (“Any by failure in denying motion to OPM’s transfer venue contracting to issue a officer decision to the Court of Federal Claims for lack on a contract within period claim re-
quired
to
a
by
will be deemed
be
contracting
denying
officer
claim
CONCLUSION
and will authorize the commencement of
Because,
CDA,
appeal
or suit on the claim as other-
ju-
Court of Federal Claims has exclusive
Act”).
provided
wise
in this
That denial
involving
risdiction over suits
a contract
gave
option
Texas Health the
under Sec-
by
claim filed
contractor
605(c)(5)
of either appeal-
CDA
States,
United
we reverse and remand
ing
appropriate agency
board or
to
case
the district
with instructions
commencing
provided
as
suit
otherwise
to transfer to the Court of Federal Claims.
Health purportedly
CDA. Texas
so, however,
chose the
doing
latter.
In
REVERSED AND REMANDED.
comply
not
did
CDA.
MAYER,
*,
dissenting.
Circuit
Texas Health filed suit
the district
view,
my
In
case
this
is controlled
court, not in
the Court
Federal Claims.
Massachusetts,
Bowen v.
U.S.
complaint,
That
literally
(1988),
disputes between the United States and Indus.,
private contractors.” Cecile added).
F.2d at 1055 (emphasis Accord- * Mayer Haldane Robert vacated the Chief on December