CBCA 7492-R

RECONSIDERATION DENIED: June 7, 2023 CBCA 7492-R JOHN DOUGLAS BURKE, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. John Douglas Burke, pro se, Rockville, MD. Pamela R. Waldron and Ethan Chae, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), LESTER, and O’ROURKE. LESTER, Board Judge. Appellant, John Douglas Burke, has requested reconsideration of the Board’s decision dated March 10, 2023 (John Douglas Burke v. Department of Health & Human Services, CBCA 7492, 23-1 BCA ¶ 38,304), in which we granted the motion of the National Institutes of Health (NIH) to dismiss Mr. Burke’s appeal for failure to state a claim. We held in our prior decision that, under the terms of Mr. Burke’s contracts and the facts as alleged, the contracts at issue were not personal services contracts that entitled Mr. Burke to receive the same pay and benefits as federal employees. We deny Mr. Burke’s motion for reconsideration. CBCA 7492-R 2 Discussion I. Standard of Review “A motion for reconsideration must be based on the acquisition of newly discovered evidence or the showing of legal error.” Yates-Desbuild Joint Venture v. Department of State, CBCA 3350-R, et al., 18-1 BCA ¶ 36,959, at 180,084 (2017) (quoting Sims Paving Corp., DOT BCA 1822, 91-2 BCA ¶ 23,733, at 118,868). Such a motion “is improper when based upon ‘the sole ground that one side or the other is dissatisfied with the conclusions reached by the [tribunal], otherwise the losing party would generally, if not always, try his case a second time, and litigation would be unnecessarily prolonged.’” AT&T Corp. & Subsidiaries v. United States, 63 Fed. Cl. 209, 211-12 (2004) (quoting Roche v. District of Columbia, 18 Ct. Cl. 289, 290 (1883)). The party requesting reconsideration “bears the burden of establishing that the Board’s decision contains substantive errors that are substantial enough to warrant relief.” SRM Group, Inc. v. Department of Homeland Security, CBCA 5194-R, et al., 21-1 BCA ¶ 37,869, at 183,885, aff’d, No. 2021-2104, 2022 WL 1089228 (Fed. Cir. Apr. 12, 2022). II. Mr. Burke’s Grounds for Reconsideration A. Alleged Errors and Misinterpretations of Fact in the Decision Mr. Burke first argues that the factual discussion in the Board’s decision contains errors and misinterpretations of fact. He asserts that, although the Board represented in its decision that Mr. Burke had provided the price quotes that were incorporated into purchase orders that NIH’s National Human Genome Research Institute (NHGRI) issued, the Board failed to understand that NHGRI invariably had prescribed the rates in those price quotes and “instructed [him] what to enter and when to submit.” Appellant’s Motion for Reconsideration at 1. He alleges that NHGRI provided no “room for [him] to object to the original contract’s terms,” as sparse as they were, and that NHGRI had a “greater level of control . . . of these matters than perhaps the Board originally understood.” Id. at 2. Ultimately, it makes no difference who proposed the prices that were incorporated into Mr. Burke’s contracts. There is no dispute that those prices were a part of the contracts that Mr. Burke performed, and Mr. Burke never alleges that, before submitting his claim to the contracting officer, he at any time objected to those contract prices. See John Douglas Burke, 23-1 BCA at 185,972 (“Normally, if a contractor is aware of a defect in a contract’s terms prior to award but says nothing to the Government about it, he cannot raise that defect for the first time after performance is complete and expect to increase his contract price.”). An allegation of a factual error in a decision that is irrelevant to the ultimate disposition of the motion to dismiss provides no basis for reconsideration. Professional Carpet Service, CBCA 7492-R 3 GSBCA 6411, et al., 82-2 BCA ¶ 15,978, at 79,236; see Walber Construction Co., HUD BCA 79-385-C17, et al., 1982 WL 175910 (Sept. 2, 1982) (“If the ground for reconsideration will only have a collateral effect and will not result in a change in the decision, the motion will be denied.”). The alleged factual errors that Mr. Burke describes do not affect the result here and provide no grounds for reconsideration. Mr.