CBCA 7311

DISMISSED FOR LACK OF JURISDICTION: July 5, 2022 CBCA 7311 BOARD OF EDUCATION FOR THE GALLUP-MCKINLEY COUNTY SCHOOLS, Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Andrew M. Sanchez of Himes, Petrarca & Fester, Chtd., Albuquerque, NM, counsel for Appellant. Brian A. Quint, Office of the Solicitor, Department of the Interior, Washington, DC, counsel for Respondent. Before Board Judges GOODMAN, ZISCHKAU, and O’ROURKE. GOODMAN, Board Judge. This appeal was filed by appellant, Board of Education for the Gallup-McKinley County Schools (Board of Education), from a decision issued by a program manager of respondent, the Department of the Interior (DOI), Bureau of Indian Education, denying appellant’s applications for contracts pursuant to the Johnson–O’Malley Act (JOMA) of 1934, Pub. L. No. 73-167, 48 Stat. 596 (codified as amended at 25 U.S.C. §§ 5342–5348 (2018)). That decision cites appeal rights to this Board pursuant to regulations promulgated by respondent under the statute (JOMA regulations). This Board sua sponte raised the issue of whether we had subject matter jurisdiction pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018). The parties briefed the issue, and thereafter respondent filed a motion to dismiss the appeal for lack of subject matter jurisdiction or for mootness. CBCA 7311 2 We dismiss this case for lack of jurisdiction and deny appellant’s request for additional rulings. Background Appellant’s Contract Applications and Federal Lawsuit In March 2021, appellant applied for contracts with respondent to receive federal funding under provisions of the JOMA that authorize the Secretary of the Interior to “enter into a contract or contracts with any . . . school . . . and to expend under such contract or contracts, moneys appropriated by Congress for the education . . . and social welfare . . . of Indians in [a] State or Territory.” 25 U.S.C. § 5342. Thereafter, appellant filed suit in the United States District Court for the District of New Mexico, Gallup McKinley County Schools v. Haaland, No. 1:21-CV-1005 JB/SCY (D.N.M. filed Oct. 15, 2021) (the federal lawsuit), alleging a failure by defendant to respond to its applications and seeking mandamus and other remedies. Subsequently, on or about November 16, 2021,1 a DOI Bureau of Indian Education program manager issued a decision denying the contract applications. That decision stated the following appeal rights: You may challenge this denial in one of two ways. The Bureau has an alternative dispute resolution (ADR) process in place . . . . If the ADR process does not result in an informal resolution of the complaint,[2] the contractor still has the right to file an appeal with the Civilian Board of Contract Appeals under the Contract Disputes Act, 41 U.S.C. § 7101–7109, no later than 90 calendar days after the date the contractor receives the decision. 25 CFR § 273.209. Several days after receiving the decision, appellant amended its complaint in the federal lawsuit to allege that DOI’s denial of the applications was illegal. On December 21, 2021, defendant, Haaland, filed a motion to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and failure to exhaust administrative remedies under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In that motion, defendant alleged that appellant failed to exhaust its administrative remedies because challenges arising under the JOMA must be heard before this Board. 1 The decision is not dated, but the notice of appeal notes the date it was issued as November 16, 2021. 2 Appellant did not elect to proceed with ADR. CBCA 7311 3 The Relevant JOMA Regulations The relevant regulations issued pursuant to the JOMA pertaining to review of contract applications and appeal rights state: Upon receiving a contract proposal,[3] the approving official will: (a) Notify the applicant in writing that the contract proposal has been received . . .