Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________________________________ MOTION TO DISMISS IN PART GRANTED: June 11, 1998 ___________________________________________________ GSBCA 14165 WESTERN AVIATION MAINTENANCE, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Floyd D. Stilwell, President of Western Aviation Maintenance, Inc., Mesa, AZ, appearing for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. Pending is respondent's motion to dismiss the part of this appeal that requests specific performance. For the reasons set out below, we grant the motion. Background In February 1996, Western Aviation Maintenance, Inc. (Western Aviation) submitted bids to purchase several airplanes at a sale conducted by the General Services Administration (GSA). GSA accepted Western Aviation s bids for five of the airplanes. After the sale, the Department of the Air Force, which had custody of the airplanes, asked GSA to terminate the sales contracts because the airplanes were possibly contaminated with dioxin. After some discussion, GSA terminated the sales contracts with Western Aviation. Western Aviation submitted a claim to the GSA contracting officer, asking for specific performance of the sales contracts and for money damages in excess of $100,000. On April 8, 1997, the contracting officer denied the claim. Western Aviation filed this appeal on April 28, 1997. On February 2, 1998, the Board advised the parties that there appeared to be a problem with its jurisdiction to consider Western Aviation s claim for money damages, because Western Aviation had not certified the claim as required by the Contract Disputes Act, 41 U.S.C. 605 (1994). The Board told the parties that if Western Aviation did not supply a certification, the Board would entertain a motion to dismiss the claim for money damages. The Board also advised the parties that if Western Aviation supplied a certification, GSA should review the claim and either issue a new contracting officer's decision or, if it wished, stipulate that the contracting officer's April 8, 1997 decision served as a de facto decision denying the certified claim, as was permitted in United States v. Hamilton Enterprises, Inc., 711 F.2d 1038 (Fed. Cir. 1983). On April 21, 1998, GSA filed a motion to dismiss the entire appeal for lack of prosecution. On April 27, 1998, the Board issued an order stating that we would consider the motion to dismiss the money damages portion of the appeal as a motion to dismiss for lack of jurisdiction, because granting GSA s motion would operate as a dismissal on the merits which would be inappropriate if we lacked jurisdiction. Our order also stated that we would consider the motion to dismiss the specific performance portion of the appeal as a motion to dismiss for lack of jurisdiction or for failure to state a claim upon which relief could be granted. On May 8, 1998, in response to GSA s motion, Western Aviation submitted a certification of its claim for money damages. Western Aviation did not address the specific performance issue raised by GSA. In its May 15, 1998 reply to Western Aviation's response, GSA withdrew its motion to dismiss the money damages portion of the appeal. GSA stated that it saw no need for Western Aviation to resubmit its money claim for a new decision by the contracting officer.[foot #] 1 GSA continues to ask us to dismiss Western Aviation's request for specific performance. Discussion Before enactment of the Contract Disputes Act (CDA) in 1978, the authority of agency boards of contract appeals was based upon the terms of contracts between appellants and agencies. In exercising their authority, the boards granted monetary relief, and when they considered appeals concerning the propriety of terminations for default, rights in technical data, and compliance with cost accounting standards, for example, they granted declaratory relief. The boards did not, however, grant other forms of equitable relief, such as injunctive relief or specific performance. Ulric McMillan dba Atrum Graphic Studios, GSBCA 7029-COM, et al., 83-2 BCA 16,595; General Electric Automated Systems Division, ASBCA 36214, 89-1 BCA 21,195; McDonnell Douglas Corp., ASBCA 26747, 83-1 BCA 16,377, aff'd in part and rev'd in part, 754 F.2d 365 (Fed. Cir. 1985). After the CDA was enacted, the authority of the boards to entertain appeals was based upon the statute s grant of jurisdiction to the boards to decide "any appeal from a decision of a contracting officer." The CDA provided that in exercising this jurisdiction, the boards could grant any relief that would be available to a litigant asserting a contract claim in the United States [Court of Federal Claims]."[foot #] 2 41 U.S.C. 607(d). A litigant asserting a CDA contract claim in the Court of Federal Claims could obtain only monetary relief, see Bowen v. Massachusetts, 487 U.S. 879, 905 (1988), because the court s jurisdiction derived from the Tucker Act, 28 U.S.C. 1491(a)(2) (1988), which did not waive the sovereign immunity of the United States from suits for equitable relief in post-award contract cases. In Malone v. United States, 849 F.2d 1441, modified, 857 F.2d 787 (Fed. Cir. 1988), the United States Court of Appeals for the Federal Circuit explained that in CDA cases, litigants in the boards could continue to request declaratory relief and the ----------- FOOTNOTE BEGINS --------- [foot #] 1 We consider GSA's May 15, 1998 reply to constitute the stipulation permitted by Hamilton Enterprises. ____________________ [foot #] 2 The United States Claims Court was the successor to the original (trial) jurisdiction of the United States Court of Claims. Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25. In 1992, Congress changed the name of the Claims Court to the United States Court of Federal Claims. Court of Federal Claims Technical and Procedural Improvements Act of 1992, Pub.L. No. 102-572, tit. IX, 902, 106 Stat. 4516. Herein, we refer to the court as the Court of Federal Claims. ----------- FOOTNOTE ENDS ----------- boards could continue to grant such relief, just as they had done pre-CDA. In Overall Roofing & Construction, Inc. v. United States, 929 F.2d 687 (Fed. Cir. 1991), the Court of Appeals explained that litigants in the Court of Federal Claims had to continue to request monetary relief in order for the court to have jurisdiction. The decision in Overall Roofing clearly established that the range of remedies available to litigants in the Court of Federal Claims was more limited than that available to litigants in the boards. In the Federal Courts Administration Act of 1992, Congress amended the Tucker Act, so that the final sentence of section 1491(a)(2) now reads (new language italicized): The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act. 28 U.S.C. 1491(a)(2) (1994). There is only one piece of legislative history explaining this change to the Tucker Act, and it says that the language shown above in italics was meant to clarify the power of the Court of Federal Claims to hear appeals of all contracting officers final decisions, regardless of whether the dispute involves a claim for money currently due. The amendment will restore the option of appealing any final decisions to either the Court of Federal Claims or agency board of contract appeals [as] was intended in the Contract Disputes Act. 138 Cong. Rec. S17799 (daily ed. Oct. 8, 1992) (statement of Sen. Heflin, chairman of subcommittee that reported legislation). The question presented here is whether the 1992 amendment to the Tucker Act constitutes a waiver of the Government's sovereign immunity from suits for specific performance in CDA cases. If so, then the Court of Federal Claims and the boards can now provide relief in such cases. We conclude that although the 1992 amendment expanded the Tucker Act's waiver of sovereign immunity in CDA cases, the scope of the waiver does not include suits for specific performance. The expressed intent of Congress in the 1992 amendment was to provide the Court of Federal Claims with the ability to consider cases in which litigants asked for something other than monetary relief, and to provide litigants with the option of proceeding at either the court or at the boards. As the result of the 1992 amendment, declaratory relief is now available from both the boards and the court in CDA cases. Congress did not, however, express any intent to waive the Government's immunity from suits for specific performance, and we will not infer such an intention. In Quality Tooling, Inc. v. United States, 47 F.3d 1569 (Fed. Cir. 1995), the Court of Appeals explained that in order to determine whether a statute constituted a waiver of sovereign immunity, it would look to see whether Congress had manifested a "clear and undisputed" intention to waive the Government's immunity from suit. 47 F.3d at 1576. The Court stated: [W]aiver of sovereign immunity is accomplished not by "a ritualistic formula;" rather intent to waive immunity and the scope of such a waiver can only be ascertained by reference to underlying congressional policy. Franchise Tax Bd. of California v. United States Postal Serv., 467 U.S. 512, 521, 104 S. Ct. 2549, 2554, 81 L. Ed. 2d 446 (1984) (quoting Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389, 59 S. Ct. 516, 517-18, 83 L. Ed. 784 (1939). 47 F.3d at 1575. This guidance is useful in considering whether the Tucker Act amendment waived sovereign immunity from suits for specific performance. In the 1992 amendment to the Tucker Act, the clear and undisputed intent of Congress was to permit the Court of Federal Claims to consider CDA cases in which litigants did not seek monetary relief, and to permit litigants to proceed at either the boards or the court. The underlying policy that prompted the amendment, as mentioned in the legislative history, is that the CDA was meant to provide litigants with the option of proceeding in either the boards or the court. Prior to the amendment, however, litigants could proceed in the boards, but not in the court, to obtain nonmonetary relief in cases concerning terminations of contracts, rights in tangible or intangible property, compliance with cost accounting standards, and a few other types of cases. The purpose of the amendment was to ensure the functional equality of the two forums in CDA cases. In amending the Tucker Act, Congress manifested no intent to waive the Government's immunity from suits for specific performance. The sparse legislative history of the amendment does not mention specific performance at all, much less express any intent to waive immunity from specific performance suits. Congress gave no indication that it meant to do anything more than to provide the Court of Federal Claims with the ability to furnish the same type of relief that was available at the boards. The type of relief afforded by the boards, however, was limited to declaratory relief, and did not extend to other types of equitable relief, such as specific performance. The disputes specifically mentioned in the amendment -- disputes concerning terminations of contracts, rights in tangible or intangible property, and compliance with cost accounting standards -- are those in which boards had historically provided only declaratory relief. In the absence of a clear expression of Congressional intent to waive the sovereign's immunity from suits for specific performance, we cannot read the 1992 amendment to the Tucker Act as containing such a waiver. The Supreme Court has never "lightly inferred the United States' consent to suit" when considering the scope of the Tucker Act. United States v. Mitchell, 463 U.S. 206, 218 (1983). In one of the earliest decisions addressing the scope of the Tucker Act, the Supreme Court read the statute as not waiving the Government's immunity from suits for specific performance. United States v. Jones, 131 U.S. 1 (1889). More than one hundred years later, Congress recognized the continuing limitation upon the scope of the Tucker Act s waiver of sovereign immunity when it noted that creating a monetary remedy in the predecessor to the Court of Federal Claims "was intended to foreclose specific performance of government contracts." H.R. Rep. No. 1656, 94th Cong., 2d Sess. 12-13 (1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6132, 6133. In order for us to conclude that Congress meant for the 1992 Tucker Act amendment to depart from more than one hundred years of practice and precedent by waiving the Government's immunity from suits for specific performance, we would have to find some clear evidence that this was the intent of Congress, and we have found no such evidence. In summary, boards can grant relief to appellants if such relief is available to litigants in the Court of Federal Claims. Before the 1992 amendment to the Tucker Act, neither boards nor the court could provide specific performance relief. By amending the Tucker Act, Congress intended to expand the statute's waiver of sovereign immunity in order to provide the Court of Federal Claims with the ability to provide declaratory relief in CDA cases, just as the boards were able to do. We find no evidence that Congress intended for the 1992 amendment to waive the Government's immunity from suits for specific performance in the Court of Federal Claims. Because the amendment did not make specific performance relief available to litigants in the Court of Federal Claims, such relief is not available at the boards. Decision Respondent's motion is GRANTED. We dismiss the portion of the appeal that requests specific performance and retain jurisdiction to consider the remainder of the appeal, which requests monetary relief. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________________ __________________________________ JOSEPH A. VERGILIO ALLAN H. GOODMAN Board Judge Board Judge