ASBCA 58137

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) The Ryan Company ) ASBCA No. 58137 ) Under Contract No. DACW69-02-C-OOO 1 ) APPEARANCES FOR THE APPELLANT: Lawrence M. Prosen, Esq. Christian F. Henel, Esq. Thompson Hine LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Willie J. Williams, Esq. Bradley J. Stark, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Huntington OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises under Contract No. DACW69-02-C-0001 awarded by the United States Army Corps of Engineers (Corps or government) to The Ryan Company (TRC) for certain electrical work including the installation of back-up generators. The government moves to dismiss TRC's appeal for lack of jurisdiction asserting that, with the exception of certain "minor claim items" for which the contracting officer has found entitlement, TRC's claim was not submitted to the government within the six-year period required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. TRC opposes the motion. The government's motion and supporting brief is styled as a motion to dismiss for lack of jurisdiction and throughout its 59 pages is grounded upon the sole basis of TRC's alleged failure to submit its claims within the CDA's six-year statute of limitations. Nevertheless, the introductory paragraph on page 1 contains the following sentence: There is no genuine issue as to any material fact and Respondent is entitled to an Order dismissing the appeal, save the nine (9) minor items as noted herein, as a matter of law. (Gov't mot. at 1) With the exception of the above-quoted sentence, however, the government's motion and supporting brief contain no mention, no legal argument and no proposed statements of fact specifically identified as undisputed that would indicate that it seeks summary judgment on the merits. TRC, in its opposition to the motion to dismiss, confessed confusion as to whether the government's motion to dismiss was actually a jurisdictional motion or a motion for summary judgment on the merits and chose to address both, with the caveat that the appeal was in its early stages prior to either party conducting any discovery. (App. opp'n at 1, 4, 51) The government's motion to dismiss, as well as TRC's opposition and the parties' further reply briefing, were all submitted prior to the 10 December 2014 decision of the Court of Appeals for the Federal Circuit in Sikorsky Aircraft Corp. v. United States, 773 F .3d 1315 (Fed. Cir. 2014 ). In Sikorsky the Court held that the CDA's six-year statute of limitations is not jurisdictional and, therefore, cannot provide the basis to dismiss an appeal for lack of jurisdiction. Id. at 1320-22. Instead, an allegation that a claim is time-barred is properly asserted in the pleadings as an affirmative defense, 1 which is subject to a determination on the merits. Harris Corp., ASBCA No. 37940, 89-3 BCA ~ 22,145 at 111,460 (citing Do-Well Machine Shop, Inc. v. United States, 870 F.2d 637, 639 (Fed. Cir. 1989)). The party asserting the affirmative defense (moving party here) has the burden of proof in a subsequent merits proceeding, whether that be a hearing or a motion for summary judgment. The Boeing Co., ASBCA No. 54853, 12-1 BCA ~ 35,054 at 172,197. This burden of proof is the opposite of the requirement under a motion to dismiss for lack of jurisdiction where the proponent of jurisdiction (the nonmoving party) has the burden of proof. Raytheon Missile Systems, ASBCA No. 58011, 13 BCA ~ 35,241at173,016; Aries Marine Corp., ASBCA No. 37826, 90-1BCA~22,484; Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988). After the Sikorsky decision, the Board ordered the parties to submit supplemental briefs addressing the impact of the Sikorsky decision upon the government's motion to dismiss. The government's supplemental brief acknowledged that, after Sikorsky, a failure to meet the CDA's six-year statute of limitations was not jurisdictional.