CBCA 7492

DENIED: March 10, 2023 CBCA 7492 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, provided what were contractually described as “professional services” under a series of purchase orders with the National Institutes of Health (NIH). After the last of those purchase orders expired, Mr. Burke submitted a certified claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), asserting that, while working under his purchase orders, he was effectively serving as a federal civil service employee and that, rather than the hourly rates at which he was compensated under his contracts, he was entitled to receive the salary and benefits of a federal civil service employee. After the contracting officer denied his claim, Mr. Burke appealed to the Board. NIH has filed a motion to dismiss Mr. Burke’s appeal for failure to state a claim on which relief can be granted, arguing that he was paid the full amounts to CBCA 7492 2 which he agreed in his purchase orders and is entitled to nothing more now that his service under those agreements is complete. Mr. Burke’s arguments mirror those that the United States Court of Appeals for the Federal Circuit considered and rejected in Lee v. United States, 895 F.3d 1363 (Fed. Cir. 2018). The essence of Mr. Burke’s complaint is that his purchase orders were illegal personal services contracts, in violation of Federal Acquisition Regulation (FAR) 37.104 (48 CFR 37.104 (2021)), and that, because of the illegality, he should effectively be treated as a federal employee for the purposes of pay and benefits. Mr. Burke has informed us that, in developing his claim and his arguments, he used the Lee decision as a framework for his own case. He argues that, although the Lee plaintiffs were unsuccessful, the facts of his case are more compelling than what the Federal Circuit considered in Lee and that he is entitled to the relief that he seeks. The Federal Circuit’s decision in Lee controls our resolution of this matter. Although Mr. Burke’s contracts contain somewhat different language and less precise terms than the contracts that the Federal Circuit considered in Lee, and although there is some disagreement between the parties as to the extent to which particular documents are incorporated into the purchase orders, the Federal Circuit’s guidance in Lee precludes Mr. Burke from prevailing on his claim here. Assuming the truth of his allegations about the terms of his contracts, Mr. Burke has not presented a viable basis for invalidating or reforming his past purchase orders. As a result, we grant NIH’s motion to dismiss this appeal for failure to state a claim and deny Mr. Burke’s appeal. Factual Allegations The facts identified below are based upon the allegations that Mr. Burke made in his amended complaint, which mirror and add to the allegations contained in his certified claim and notice of appeal; documents that the parties agree are part of the purchase orders underlying this appeal; price quotes that Mr. Burke cites in his notice of appeal; and, for informational purposes only, some limited additional evidence contained in the record. Mr. Burke’s First Purchase Order for Professional Services Mr. Burke asserts that he originally began working for the Section on Human Biochemical Genetics of NIH’s National Human Genome Research Institute (NHGRI) under the series of purchase orders at issue here in approximately September 2014.1 The earliest 1 Mr. Burke indicates that, before September 2014, he worked for several years as a contractor under similar contracts for a different laboratory of NHGRI. CBCA 7492 3 purchase order in the record, however, is dated July 20, 2015. That 2015 purchase order was written on Optional Form 137 (rev. 02/12) (OF-137), “Order for Supplies or Services,” which is prescribed by FAR 53.213(f) (48 CFR 53.213(f) (2014)). That two-page OF-137 identified Mr. Burke as the contractor and NHGRI as the administrative office for the order.