ASBCA 58849

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Raytheon Company ) ASBCA No. 58849 ) Under Contract Nos. N00019-05-G-0008 ) W911QX-04-C-0108 ) APPEARANCES FOR THE APPELLANT: Paul E. Pompeo, Esq. Dominique L. Casimir, Esq. Arnold & Porter LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Stephen R. Dooley, Esq. Senior Trial Attorney Alexander M. Healy, Esq. Kara M. Klaas, Esq. Debra E. Berg, Esq. Trial Attorneys Defense Contract Management Agency Boston, MA OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON APPELLANT'S MOTION TO DISMISS This appeal arises under Contract Nos. NOOO 19-05-G-0008 and W911QX-04-C-O108 awarded by the government to Raytheon Company (Raytheon or appellant) and administered by the Defense Contract Management Agency (DCMA). DCMA asserted a government claim against Raytheon alleging that Raytheon's accounting treatment of certain 401 (k) forfeitures violated Cost Accounting Standards (CAS) 403 and 415. Raytheon moves to dismiss the appeal for lack of jurisdiction asserting that the government's claim was not asserted within the six-year period required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Raytheon also moves to dismiss that portion of the appeal based on anything other than CAS 415 because the contracting officer's final decision allegedly failed to assert a claim on any basis other than CAS 415. The government opposes the entirety of Raytheon's motion. A. Jurisdiction Appellant's motion and supporting brief, as well as the government'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 ii 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 (the moving party) 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, 12-1BCAii35,054 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 ii 35,241 at 173,016; Aries Marine Corp., ASBCA No. 37826, 90-1BCAii22,484; 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 Raytheon's motion to dismiss. Appellant's supplemental brief took the position that, even after Sikorsky, we have the discretion to dismiss an appeal on the basis of a failure to meet the CDA's six-year statute of limitations. In the alternative, Raytheon argued that the Board could appropriately treat its existing motion to dismiss as either a motion for summary judgment or a motion to dismiss for failure to state a claim. The government's supplemental brief opposed appellant's positions. For reasons including the significant difference in the burden of proof stated above, it has long been our precedent that briefing submitted in support of a motion to dismiss for lack of jurisdiction will not necessarily be considered in rendering a decision on the merits. Combat Support Associates, ASBCA Nos.