CBCA 7682

DISMISSED FOR LACK OF JURISDICTION: June 6, 2023 CBCA 7682 BRANDON STAFFING SOLUTIONS LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Richard J. Harris, Chief Executive Officer of Brandon Staffing Solutions LLC, Rockwall, TX, appearing for Appellant. Natica Chapman Neely, Office of General Counsel, Department of Veterans Affairs, Jackson, MS, counsel for Respondent. Before Board Judges KULLBERG, SULLIVAN, and O’ROURKE. KULLBERG, Board Judge. The Board ordered appellant, Brandon Staffing Solutions LLC (BSSL), to show cause why this appeal should not be dismissed for lack of jurisdiction. Respondent, the Department of Veterans Affairs (VA), contends that the appeal is either untimely or barred by the doctrine of res judicata. BSSL’s representative has alleged health issues as the explanation for untimely filings or failure to respond to Board orders. For the reasons stated below, the appeal is dismissed. CBCA 7682 2 Background On November 12, 2019, the VA contracting officer (CO) issued a final decision (COFD) demanding that BSSL pay the Government the amount of $85,513.64. The COFD concerned contract number VA241-17-P-00855 (contract), which was “a Non-Personal Firm Fixed Price Purchase Order for payroll coverage of the [compensated work therapy (CWT)] Program at the Bedford, Massachusetts, [VA medical center (VAMC)].” The COFD noted that BSSL owed “$9,071 in bounced checks (‘return to maker’); $3,716.65 in checks that were not cashed; and $72,725.99, that they retained for a total owed of $85,513.64.” (Emphasis in original). On November 18, 2020, the CO issued a second COFD, which stated that the amount previously demanded in connection with the contract “was short $26,154.10.” The VA’s second COFD demanded that BSSL pay the amount of $111,667.74. By letter dated February 8, 2021, BSSL filed its notice of appeal of the November 18, 2020, COFD. On February 11, 2021, the Board docketed BSSL’s appeal, CBCA 7044. BSSL, however, repeatedly failed to respond to the Board’s orders, and on February 8, 2022, the Board dismissed the appeal for failure to prosecute. Brandon Staffing Solutions LLC v. Department of Veterans Affairs, CBCA 7044, 22-1 BCA ¶ 38,050, at 184,765. On February 23, 2023, appellant filed its appeal of the November 12, 2019, COFD, but its notice of appeal stated that the amount in dispute was $111,667.74, which was the amount demanded in the November 18, 2020, COFD. BSSL’s notice of appeal also referenced the dismissal of its previous appeal, CBCA 7044, for failure to prosecute and requested that it be “returned to the docket.” The Board raised, sua sponte, the issue of whether it had jurisdiction to hear the appeal given the previous dismissal of CBCA 7044. The Board’s March 13, 2023, order directed the parties to address the issue of jurisdiction. Both parties submitted responses. The VA contends that the Board’s previous dismissal of BSSL’s appeal for failure to prosecute was a final judgment on the merits, and the Board’s dismissal precluded appellant from bringing an appeal of the same COFD under the doctrine of res judicata. Additionally, the VA argued that BSSL’s appeal of the November 12, 2019, COFD was untimely because BSSL filed its appeal more than ninety days after receipt. Appellant’s response made various representations about its representative’s ill health. The Board then issued an order to appellant to show cause why this appeal should not be dismissed. BSSL reiterated its previous inability to pursue its appeal for health reasons. CBCA 7682 3 Discussion At issue is whether the Board has jurisdiction to hear this appeal under either of the grounds, res judicata or timeliness, which have been asserted by the Government. The Board’s jurisdiction to hear this appeal is pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018). The Board addresses, in turn, the VA’s grounds for dismissal. The Board dismissed BSSL’s previous appeal of the November 18, 2020, COFD for failure to prosecute. The doctrine of res judicata “involves the related concepts of claim preclusion and issue preclusion.” Phillips/May Corp. v. United States, 524 F.3d 1264, 1267 (Fed. Cir. 2008).