CBCA 5701-R

MOTION FOR RECONSIDERATION DENIED: August 22, 2017 CBCA 5701-R YRT ENTERPRISES LLC dba TOMPKINS INVESTIGATION SERVICES, Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Yolanda R. Tompkins, President of YRT Enterprises LLC dba Tompkins Investigation Services, Washington, DC, appearing for Appellant. J. Todd Casey, Office of Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), ZISCHKAU, and SULLIVAN. SULLIVAN, Board Judge. Appellant, YRT Enterprises LLC (YRT), seeks reconsideration of the Board’s dismissal of its appeal for lack of jurisdiction.1 YRT Enterprises LLC v. Department of Justice, CBCA 3701 (July 26, 2017). Because neither the new evidence nor the new 1 In its motion, YRT states that it is appealing the Board’s decision, but cites one of the Board’s rules regarding reconsideration and seeks to introduce new evidence for the Board’s consideration. On this basis, the Board construes YRT’s motion to be one for reconsideration, pursuant to Rules 26 and 27 (48 CFR 6101.26, .27 (2016)). Appeals of decisions of the Board are made directly to the United States Court of Appeals for the Federal Circuit and are governed by the rules of that court. CBCA 5701-R 2 arguments presented by YRT overcome the jurisdictional defects of its appeal, the Board denies the motion for reconsideration. Respondent, Department of Justice, Bureau of Alcohol, Firearms, Tobacco and Explosives (ATF), filed a motion seeking permission to respond to the reconsideration motion. The Board denies this motion as moot. Discussion Rules 26 and 27 of the Board’s rules set forth the standards by which a motion for reconsideration will be evaluated and provide that reconsideration may be granted for several reasons, including newly discovered evidence which could not have been earlier discovered, even through due diligence; justifiable or excusable mistake, inadvertence, surprise, or neglect; or fraud, misrepresentation, or other misconduct of an adverse party. Americom Government Services, Inc. v. General Services Administration, CBCA 2294-R, 17-1 BCA ¶ 36,590, at 178,712. “Reconsideration is not a vehicle for retrying a case or introducing arguments that could have been made previously.” Id. In our prior decision, we held that the Board lacked jurisdiction to consider YRT’s allegations that the agency’s actions constituted a violation of title VII of the Civil Rights Act of 1964, because that act vests sole jurisdiction to consider such complaints with the United States district courts. YRT Enterprises LLC, slip op. at 5. We further held that, to the extent YRT was alleging general acts of discrimination, the Board could only consider these allegations if YRT alleged specifically how unlawful acts of government personnel affected its ability to perform the contract. Id. at 5-6. We determined that the letter sent to YRT on November 23, 2017, requesting return of security credentials at the end of contract performance did not terminate YRT’s ability to work on the contract. Id. at 6. YRT seeks reconsideration of the Board’s determination that YRT had not alleged how the November 23 letter prevented it from performing the contract. With its motion, YRT submitted a second email message from the contracting officer, sent on November 28, 2016, stating that ATF would respond to YRT’s inquiry “shortly.” Exhibit 20.2 YRT asserts that, because the contracting officer did not provide a response until November 30, 2016, the day that the contract was scheduled to end, ATF prevented YRT from working on the contract. This additional email message from the contracting officer does not change the Board’s analysis of the November 23 letter itself, which we found was not a termination letter and did not prevent YRT from continuing to work on the contract through the end of contract completion, November 30. 2 YRT submitted three new exhibits with its motion, numbered as appeal file exhibits. We cite to these exhibits with those numbers. CBCA 5701-R 3 YRT alleges for the first time that ATF’s actions violate provisions of the National Defense Authorization Act for Fiscal Year 2013, codified at 41 U.S.C.