CBCA 2882-R

MOTION FOR RECONSIDERATION DENIED: November 16, 2016 CBCA 2882-R BRYAN CONCRETE & EXCAVATION, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Bradley W. Andersen and Timothy J. Calderbank of Landerholm, P.S., Vancouver, WA, counsel for Appellant. Brian R. Reed, Kristin Langwell, Glenn Sebesta, and Brent Pope, Office of Regional Counsel, Department of Veterans Affairs, Chicago, IL, counsel for Respondent. Before Board Judges SOMERS, DRUMMOND, and ZISCHKAU. SOMERS, Board Judge. Bryan Concrete & Excavation, Inc. (BCE) seeks reconsideration under Board Rule 26 (48 CFR 6101.26 (2015)) of the Board’s August 26, 2016, decision granting summary relief to respondent, the Department of Veterans Affairs (VA). The facts underlying this dispute are laid out in detail in the Board’s earlier opinion. See Bryan Concrete & Excavation, Inc. v. Department of Veterans Affairs, CBCA 2882, 16-1 BCA ¶ 36,475. After filing this motion, BCE filed an appeal from our decision to the United States Court of Appeals for the Federal Circuit (CAFC). For the reasons explained below, we first find that we possess jurisdiction to consider BCE’s motion, despite the fact that BCE has appealed to CBCA 2882-R 2 the CAFC. Next, upon consideration of appellant’s brief and the VA’s opposition, we deny the motion. The Board Possesses Jurisdiction Over BCE’s Motion for Reconsideration On November 8, 2016, BCE filed an appeal from our decision with the United States Court of Appeals for the Federal Circuit, which was docketed on November 8, 2016. “[A]s a general proposition, once final judgment is entered and a timely notice of appeal has been filed, the trial tribunal loses jurisdiction over the case except to act in aid of the appeal or to correct clerical errors.” Travel Centre v. General Services Administration, GSBCA 14057-R, 00-2 BCA ¶ 31,129, at 153,769 (quoting A.C. Nielsen Co. v. Defense Commissary Agency, GSBCA 13466-P-R, et al., 97-1 BCA ¶ 28,774, at 143,594); see also Zinger Construction Co., GSBCA 6568-R, 87-1 BCA ¶ 19,444 (1986), (citing Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774, 781 (Fed. Cir. 1983)); Yachts America, Inc. v. United States, 8 Cl. Ct. 278, 281, aff’d, 779 F.2d 656 (Fed. Cir. 1989). Generally, the only things left for the lower tribunal to rule upon are those matters vested in the lower tribunal by statute or mandatory rule which are appropriate for post-trial or post-hearing disposition. Id. (citing Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565, 1574-75 (Fed. Cir. 1986); see also Signal Contracting, Inc., ASBCA 44963, 93-3 BCA ¶ 26,058 (citing Hattersley v. Bollt, 512 F.2d 209, 215 (3rd Cir. 1975). However, at least one of our predecessor boards determined that it is appropriate to hear and deny a motion for relief even after an appellant has filed a notice of appeal, without leave of the appellant court. A.C. Nielsen Co., 97-1 BCA at 143,594. As the General Services Board of Contract Appeals (GSBCA) explained: In Yachts America, the Federal Circuit recognized that it was appropriate for the Claims Court1 to assume jurisdiction over a motion for relief from decision while an appeal was pending. There, the Federal Circuit affirmed the Claims Court’s denial of a Rule 60(b) motion filed after the Claim’s Court decisions had been appealed. In assuming jurisdiction, the Claims Court recognized: [c]onceptually, it is awkward for a court to rule in a case when jurisdiction lies elsewhere. But practically, it is helpful to the appellate court to know whether the record it has is complete, 1 The United States Claims Court was renamed the United States Court of Federal Claims by the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4516. CBCA 2882-R 3 whether the proposed new evidence makes a difference and whether judicial and litigation time and resources are likely to be misspent by unnecessary transferral of the case between courts. To the extent the trial court can provide this information about a case with which it is so far more familiar than is the court of appeals, it acts “in furtherance of the appeal.” Id.; Accord Placeway Construction Corp. v. United States, 19 Cl. Ct. 484, 488 (1990). The grant or denial of a motion for relief from decision is discretionary.