CBCA 6581

MOTION TO CONSOLIDATE GRANTED; MOTIONS TO DISMISS FOR LACK OF JURISDICTION, TO STAY, AND TO DESIGNATE LEAD RESPONDENT DENIED: February 21, 2020 CBCA 6581, 6582 CSI AVIATION, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent in CBCA 6581, and GENERAL SERVICES ADMINISTRATION, Respondent in CBCA 6582. Jason N. Workmaster, Abigail T. Stokes, and Caroline J. Watson of Miller & Chevalier Chartered, Washington, DC, counsel for Appellant. Cassandra A. Maximous, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, Washington, DC, counsel for Respondent in CBCA 6581. Sarah E. Park, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent in CBCA 6582. Before Board Judges DRUMMOND, KULLBERG, and CHADWICK. CBCA 6581, 6582 2 CHADWICK, Board Judge. In Avue Technologies Corp. v. Department of Health & Human Services, CBCA 6360, et al. (Feb. 3, 2020), the Board deferred resolution of motions by the General Services Administration (GSA) and by an ordering agency asking us to decide which agency was the proper respondent in a dispute about an order placed under a GSA schedule contract. We reasoned that, where we docketed two appeals on the same claim, and we would have jurisdiction in one appeal or the other, “[t]he issue of which appeal is properly before us in the consolidated case has little practical significance for now and is, as a legal matter, neither so urgent that we must decide it now nor so obvious that we can decide it on the existing record.” Similarly, here, where a contractor cautiously filed two appeals, one of which is necessarily protective, in a dispute involving schedule orders by a civilian agency, we will defer ruling on jurisdiction until we can say for sure that the dispute either does or does not require us to interpret the schedule contract. The alternative to waiting—i.e., identifying one respondent before we hear all of the merits arguments—will not move cases like this any faster and could turn the rule of Sharp Electronics Corp. v. McHugh, 707 F.3d 1367 (Fed. Cir. 2013), under which such a claim must “go to” GSA “if” but only if “it requires interpretation of the schedule contract’s terms and provisions,” id. at 1374, into a slow-acting solvent that could unexpectedly dissolve our jurisdiction later in the proceedings. The contractor, CSI Aviation, Inc. (CSI), moves to consolidate its two appeals but asks us to stay CBCA 6581, which CSI considers its protective appeal, and to “designate GSA as the responsible agency” in the combined case. CSI relies on a provision of the schedule contract as its basis for liability and argues that we must interpret that provision to decide the merits. GSA argues that it is “not a party to the dispute” and seeks dismissal of CBCA 6582 for lack of jurisdiction. The Department of Homeland Security (DHS), the parent agency of the ordering agency, agrees with GSA that DHS is the proper respondent. DHS argues that CSI’s request to stay CBCA 6581 is an improper attempt to “cut [the ordering agency] out of the case.” DHS also opposes consolidation, arguing that “the matter cannot proceed to the merits until . . . CSI’s complaint is clear and the Board has opined on which matter already pending before the Board should continue in proceedings.” We agree in part with CSI and DHS. We consolidate the appeals but do not stay either appeal or purport to “designate” a lead agency. The agencies will need to coordinate just as they would if this matter were before the Court of Federal Claims and the agencies were represented by the Department of Justice. As in Avue, we reject the argument that we “cannot proceed to the merits” of the claim while deferring a ruling on jurisdiction. CBCA 6581, 6582 3 Background CSI sells air transportation services to federal agencies under a GSA schedule contract. This dispute involves five charter flight orders placed by Immigration and Customs Enforcement (ICE). In early 2019, CSI invoiced ICE for $21,100,214.74, which CSI said it was owed after “rounding up” the durations of those flights “to the nearest flight hour,” citing language of the schedule contract.