MOTION TO DISMISS
GRANTED AS TO CBCA 235-ISDA AND 236-ISDA
AND DENIED AS TO
CBCA 171-ISDA AND 237-ISDA: July 28,
2008
CBCA
171-ISDA, 235-ISDA, 236-ISDA, 237-ISDA
CONFEDERATED
TRIBES OF COOS, LOWER UMPQUA,
AND
SIUSLAW INDIANS,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Geoffrey
D. Strommer of Hobbs, Straus, Dean & Walker, LLP, Portland, OR, counsel for
Appellant.
Jay
Furtick, Office of the General Counsel, Department of Health and Human
Services, Seattle, WA, counsel for Respondent.
Before Board Judges
HYATT, DeGRAFF, and STEEL.
STEEL, Board Judge.
For
all the years at issue in these appeals, the Confederated Tribes of Coos, Lower
Umpqua, and Siuslaw Indians (collectively the ATribe@) provided health care services to its members under
self-determination contracts or compacts with the Department of Health and
Human Services (HHS) Indian Health Service (IHS), pursuant to the Indian
Self-Determination and Education Assistance Act (ISDA or Act), Pub. L. No.
93-638, codified as amended at 25 U.S.C. ''
450, et seq. (2000). The Tribe
seeks additional amounts of indirect contract support cost (CSC) funding from
IHS under ISDA contracts and compacts in fiscal years (FYs) 1995 through
1998. IHS moves to dismiss the appeals.
Background
In
1975, Congress enacted the ISDA to encourage Indian self-government by allowing
the transfer of certain federal programs operated by the Federal Government,
including health care services programs, to tribal governments and other tribal
organizations by way of contracts. The
amount of contract funds provided to the tribes was the same as the amount IHS
would have provided if it had continued to operate the programs. This amount is known as the ASecretarial amount@ or Atribal shares.@ 25 U.S.C. '
450j-l(a). The Secretarial amount,
however, included only the funds IHS would have provided directly to operate
the programs. It did not include funds
for additional administrative costs the tribes incurred in running the
programs, but which IHS would not have incurred, such as the cost of annual
financial audits, liability insurance, personnel systems, and financial
management and procurement systems. S.
Rep. No. 100-274, at 8-9 (1987).
In
1988, Congress amended the ISDA to authorize IHS to negotiate additional
instruments, self-governance Acompacts,@ with a
selected number of tribes. Pub. L. No.
100-472, tit. II, ' 201(a), (b)(1), 102 Stat. 2288, 2289 (1988); see
25 U.S.C. ' 450f note (repealed by Pub. L. No. 106-260, ' 10, 114 Stat. 711, 734 (2000)). Under this more flexible Tribal
Self-Governance Demonstration Project, the selected tribes were given the
option of entering into either contracts or compacts
with IHS to perform certain programs, functions, services, or activities
(PFSAs) which IHS had operated for Indian tribes and their members. If a tribe and IHS entered into a compact,
they also entered into annual funding agreements (AFAs).
The
1988 amendments also provided for funding for the additional administrative
costs which tribes incurred in running health services programs. The statute as amended provides that there
shall be added to the Secretarial amount contract support costs Awhich shall consist of an amount for the reasonable
costs for activities which must be carried on by a tribal organization as a
contractor to ensure compliance with the terms of the contract and prudent
management.@ 25 U.S.C. ' 450j-l(a)(2).
These amounts are for Acosts which normally are not carried on by the
respective Secretary in his direct operation of the program; or . . . are
provided by the Secretary in support of the contracted program from resources
other than those under contract.@ Id.
There
are three categories of CSC: start-up costs, indirect costs (IDC), and direct
costs. Start-up costs are one-time costs
necessary to plan, prepare for, and assume operation of a new or expanded PFSA,
such as the start-up costs for a new clinic.
Indirect costs are those costs incurred for a common or joint purpose,
but benefiting more than one PFSA, such as administrative and overhead
costs. Direct CSC are expenses which are
directly attributable to a certain PFSA but which are not captured in either
the Secretarial amount or indirect costs, such as workers= compensation insurance, which the Secretary would not
have incurred if the agency were operating the program. 25 U.S.C. '
450j-1(a).
The
provision of funds for CSC is Asubject to the availability of appropriations,@ notwithstanding any other provision in the ISDA, and
IHS is not required to reduce funding for one tribe to make funds available to
another tribe or tribal organization. 25
U.S.C. ' 450j‑1(b).
From
one fiscal year to the next, IHS cannot reduce the Secretarial amount and the
CSC it provides except pursuant to:
(A) a reduction in
appropriations from the previous fiscal year for the program or function to be
contracted;
(B) a directive in
the statement of the managers accompanying a conference report on an
appropriation bill or continuing resolution;
(C) a tribal
authorization;
(D) a change in the
amount of pass-through funds needed under a contract; or
(E)
completion of a contracted project activity or program.
25 U.S.C. ' 450j-l(b)(2).
IHS
is required to prepare annual reports for Congress regarding the implementation
of the ISDA. Among other things, these
reports include an accounting of any deficiency in the funds needed to provide
contractors with CSC. 25 U.S.C. ' 450j-l(c). The
reports which set out the deficiencies in funds needed to provide CSC are known
as Ashortfall reports.@ Amended Complaint & 28; 25 U.S.C. '
450j-1(c), (d). Each IHS Area Office,
including the Portland Area Office, prepared shortfall reports for FYs 1995
through 1998 which were submitted to Congress.
Amended Complaint & 28; Answer & 14.
For
FYs 1995 through 1998, Congress set aside $7.5 million of IHS=s appropriated funds into the Indian
Self-Determination (ISD) fund which were to be used for the transitional costs
of new or expanded tribal programs.
Department of the Interior and Related Agencies Appropriations Act,
1995, Pub. L. No. 103-332, tit. II, 108 Stat. 2499, 2528 (1994); Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,
110 Stat. 1321, 1321-189 (1996) ; Omnibus Consolidated Appropriations Act,
1997, Pub. L. No. 104-208, 110 Stat. 3009, 3009-12 (1996); Department of the
Interior and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-83, 111 Stat. 1543, 1582
(1997). In connection with the ISD
fund, IHS developed a policy for funding CSC for new or expanded programs. IHS established a priority list, called the Aqueue,@ and funded CSC for new or expanded programs on a
first-come, first-served basis, as determined by the date on which IHS received
a tribe=s request for funding.
See, e.g., IHS Circular No. 96-04, ' 4.A(4)(a)(ii). Thus, IHS would fund the first request it
received for funding CSC for a new or expanded program, then it would fund the
next request it received, and it would continue funding CSC requests until the
ISD funds were exhausted for a fiscal year.
Requests not funded during one fiscal year moved up the queue to be paid
when the next fiscal year=s funds were distributed. Appeal File, Exhibit VIIa, Indian
Self-Determination Memorandum (ISDM) 92-2 &
4-C(1), at 4.
One
of the 1988 amendments to the ISDA provided that the Contract Disputes Act (CDA) Ashall
apply to self-determination contracts.@ 25 U.S.C. '
450m-1(d). In 1994, Congress amended the
Contract Disputes Act to include a six-year time limit for presenting a claim
to the contracting officer (often an awarding official in the ISDA context):
All claims by a
contractor against the government relating to a contract shall be in writing
and shall be submitted to the contracting officer for a
decision. . . . Each
claim by a contractor against the government relating to a contract and each
claim by the government against a contractor relating to a contract shall be
submitted within 6 years after the accrual of the claim. The preceding sentence does not apply to a
claim by the government against a contractor that is based on a claim by the
contractor involving fraud.
41 U.S.C. ' 605(a).
Findings
of Fact
The
Tribe has appealed the deemed denial by IHS of its claims for unpaid CSC it
alleges are owed to it under contract numbers 248-87-0036 (for FY 1995) and 248‑96-002
(for FYs 1996 through 1998). In July of
1994, the Tribe submitted a proposal to assume responsibility for expanded
health programs, which was approved by IHS and which programs the Tribe
administered from FY 1995 through FY 1998 and beyond. Amended Complaint & 9. For this
expansion, appellant also sought ALevel of
Need Funding@ (LNF) for additional staffing (LNF expansion). Amended Complaint & 9. The Tribe=s initial ISD funding request totaled $186,979. Id. &
10. The Tribe received no CSC from the
ISD fund in FY 1995, although it performed under its contract. Id. & 12.
The
Tribe planned a second expansion for FY 1996, the assumption of PFSAs for the Western Oregon Service Unit and
Portland Area and Headquarters tribal shares (WOSU expansion). The Tribe assumed responsibility for the new
and expanded programs, but CSC on the FY 1996 expansion has also not been
paid. The unpaid amount is at least
$201,181. Amended Complaint & 20. It appears
that the amount of CSC for the FY 1996 expansion was never placed on the ISD
queue. Id. & 21.
By
letter dated December 29, 2003, the Tribe requested a contracting officer=s decision for unpaid CSC in FYs 1995 and 1996. In another letter, also dated December 29,
2003, the Tribe sought a contracting officer=s
decision for unpaid CSC due in FY 1997.
The request for a contracting
officer=s decision respecting unpaid CSC for FY 1998 was
presented in a letter dated September 27, 2004.
Amended Complaint & 2.
The
contracting officer did not issue decisions on these claims. They are therefore deemed denied. 41 U.S.C. '
605(c)(5). Appeals were filed with the
Department of the Interior Board of Contract Appeals on December 15, 2005,
where they were docketed as
IBCA No. 4724-2005 (now CBCA
171-ISDA) (FY 1995 claim), IBCA No. 4725-2005 (now CBCA 235-ISDA) (FY 1996
claim), IBCA No. 4726-2005 (now CBCA 236-ISDA) (FY 1997 claim), and IBCA No.
4727-2005 (now CBCA 237-ISDA) (FY 1998 claim).
In
its appeals the Tribe alleges that IHS failed to pay the full CSC associated
with its FY 1995 new and expanded programs in the amount of $122,155. Amended Complaint & 33. The
Tribe further asserts that IHS failed to pay the full CSC associated with its
FY 1996 ongoing and expanded programs in the amount of $223,398. Id. &
36. For FY 1997, the Tribe claims unpaid
CSCs in the amount of $220,227. Id.
& 40. For FY
1998, the Tribe claims that IHS failed to pay full CSCs in the amount of
$189,559. Id. & 44.
Discussion
In their briefs, the parties make a great many
arguments, all of which we have carefully considered. Due to the manner in which we resolve the
issues before us, it is not necessary for us to address each of the arguments
they raised in order to resolve the motion to dismiss. As explained below, laches does not bar the
Tribe=s FY 1995 claim.
We lack subject matter jurisdiction to consider the FY 1996 and FY 1997
claims. We possess subject matter
jurisdiction to consider the FY 1998 claim and we cannot dismiss it for failure
to state a claim upon which relief can be granted. Therefore, we grant the Government=s motion to dismiss, in part.
FY
1995 (CBCA 171-ISDA)
The
parties agree that the claim for FY 1995 accrued on the last day of the fiscal
year, which was September 30, 1995, since appellant could expect no further
payments for the fiscal year after that date.
The Tribe submitted this claim to the awarding official on December 29,
2003. In its motion to dismiss, IHS
raises the equitable defense of laches as a bar to the claim for additional CSC
for FY 1995.
In
order to persuade us to apply a laches defense, IHS must establish that the
Tribe delayed submitting its claim for an unreasonable and inexcusable length
of time and that this delay resulted in prejudice or injury to the
Government. A.C. Aukerman Co. v. R.L.
Chaides Construction Co., 960 F.2d 1020, 1032 (Fed. Cir. 1992) (en banc); Cornetta
v. Lehman, 851 F.2d 1372, 1377-78 (Fed. Cir. 1988) (en banc); SUFI
Network Services, Inc., ASBCA 55948, 08-1 BCA & 33,766, at 167,149; Systems Integrated,
ASBCA 54439, 05-2 BCA & 32,978, at 163,380. IHS can establish the existence of undue
delay and prejudice either by establishing there is a presumption of laches or
by offering actual proof of undue delay and prejudice. Aukerman, 960 F.2d at 1036.
Relying
upon Aukerman, IHS asks us to decide that a presumption of laches exists
because the Tribe failed to submit its claim to the awarding official within
the six-year time limit contained in section 605(a) of the CDA. In addition, IHS says the Tribe waited an
unreasonable and inexcusable length of time to submit the claim to the
contracting officer, and says its ability to defend against the Tribe=s claim has been prejudiced by the delay. Respondent=s Motion
to Dismiss at 16-18.
We
do not need to decide whether we should create a presumption of laches based
upon the six-year time limit contained in section 605(a) of the CDA because
even if we were to do so, we would conclude that the Tribe has eliminated the
presumption by offering proof to show its delay was excusable. The Tribe has shown its delay was the result
of other litigation, which is one of the reasons the Court in Aukerman
recognized as justifying a delay. Aukerman,
960 F.2d at 1033, 1038.
On
March 5, 1999, the Cherokee Nation of Oklahoma filed a complaint against IHS in
the United States District Court for the Eastern District of Oklahoma. The tribe requested certification of a class consisting
of Aall Indian tribes and tribal organizations operating
Indian Health Service Programs under [the ISDA] that were not fully paid their
contract support cost needs. . . .@ Cherokee Nation of Oklahoma v. United
States, 199 F.R.D. 357, 360 (E.D. Okla. 2001) (hereinafter Cherokee
Nation of Oklahoma). Nearly two
years later, on February 9, 2001, the court denied the request for class
certification. The Tribe asserts that it
was a putative class member in this lawsuit, and the Government has not
disputed this fact. Appellant=s Response to Respondent=s Motion
to Dismiss at 5-6. Further, the Tribe plausibly
suggests that the basis for its FY 1995 claim was uncertain until the Supreme
Court issued its decision in Cherokee Nation v. Leavitt, 543 U.S. 631
(2005). The Tribe submitted its claim to
the awarding official approximately two and three quarter years after the
request for class certification was denied in Cherokee Nation of Oklahoma,
and approximately six months after the Supreme Court=s decision in Cherokee Nation. The existence of this other litigation provides
the Tribe with an excuse for its delay such as would eliminate any presumption
of laches.
Moreover,
IHS=s proffer of proof of unreasonable delay and prejudice
is lacking. Regarding delay, the existence
of the litigation discussed in the preceding paragraph counters IHS=s proof that the Tribe was unduly dilatory in
submitting its claim to the awarding official.
Regarding prejudice, IHS asserts that it has been prejudiced by Athe fading memories of IHS witnesses and the
unavailability of one or more former IHS employees with knowledge concerning
the facts regarding the FY 1995 contract.@ Respondent=s Motion
to Dismiss at 17. These statements are
allegations of counsel, however, and are not evidence. In addition, although witnesses may have
retired, this does not mean they are unavailable to testify, Hoover v. Navy,
957 F.2d 861, 863-64 (Fed. Cir. 1992). Also, the pendency of the litigation
discussed above ought to have alerted IHS to the need to preserve relevant
documents for tribes which might become class members.
IHS
has failed to persuade us that we should apply a laches defense and bar the
claim for FY 1995 CSC. Even if we were
to create a presumption of laches based upon section 605(a) of the CDA, the
Tribe has eliminated the presumption by providing a valid excuse for its
delay. IHS=s actual
proof of unreasonable delay and prejudice is insufficient to convince us to
exercise our discretion in its favor.
Therefore, we deny the motion to dismiss the FY 1995 claim on the
grounds of laches.
FY
1996 and FY 1997 (CBCA 235-ISDA and 236-ISDA)
The
FY 1996 claim accrued on the last day of the fiscal year, which was September
30, 1996. The Tribe submitted the claim
for FY 1996 to IHS on December 29, 2003, more than six years after the claim
accrued. On December 29, 2003, The Tribe also submitted to IHS its claim for FY
1997. The FY 1997 accrual date was
September 30, 1997, also more than six years before the FY 1997 claim was
submitted. IHS moves to dismiss the FY
1996 and 1997 claims for lack of subject matter jurisdiction because the Tribe
failed to submit the claims to the awarding official within six years after
they accrued, as required by section 605(a) of the CDA. Respondent=s Motion
to Dismiss at 11-14 . The Tribe contends
the six-year time limit was met, because the time limit was either equitably or
legally tolled. Appellant=s Response to Respondent=s Motion
to Dismiss at 15-24.
Tolling,
whether equitable or legal, is a concept which applies to statutes of
limitation. If a court (or a board)
possesses jurisdiction to consider a claim, the claim must be filed before the
limitations period expires or else it becomes unenforceable. A time limit for filing suit can be
suspended, in effect, based upon equitable considerations, Irwin v.
Department of Veterans Affairs, 498 U.S. 89 (1990), or based upon legal
considerations, Stone Container Corp. v. United States, 229 F.3d 1345,
1354 (Fed. Cir. 2000). If the applicable
statute is tolled for a sufficient period, the time limit for filing suit is
met.
Section
605(a) does not contain a statute of limitations which imposes a time limit for
filing suit. Rather, it imposes a time
limit which this Board=s precedent establishes is a prerequisite to our
jurisdiction. Greenlee Construction,
Inc. v. General Services Administration, CBCA 416, 07-1 BCA & 33,514; accord, Gray Personnel, Inc.,
ASBCA 54652, 06-2 BCA & 33,378; see also Pueblo of Zuni v. United States,
467 F. Supp. 2d 1099 (D.N.M. 2006). As Gray
Personnel explained:
Under the CDA,
there are two prerequisites to an appeal to the Board or to the United States
Court of Federal Claims:
Those prerequisites
are (1) that the contractor must have submitted a proper CDA claim to the
contracting officer requesting a decision, . . . [41 U.S.C.] ' 605(a), and (2) that the contracting officer must
either have issued a decision on the claim, . . . ' 609(a), or have failed to issue a final decision
within the required time period, . . . '
605(c)(5).
England v.
Sherman R. Smoot Corp., 388 F.3d 844,
852 (Fed. Cir. 2004). If a contractor
has not submitted a proper claim, the contracting officer does not have the
authority to issue a decision:
The Act . . .
denies the contracting officer the authority to issue a decision at the
instance of a contractor until a contract Aclaim@ in writing has been properly submitted to him for a
decision. ' 605(a). Absent this Aclaim@, no Adecision@ is
possible B and, hence, no basis for jurisdiction . . . .
Paragon Energy
Corp. v. United States, 645 F.2d 966,
971 (Ct. Cl. 1981). Thus, A[i]t is well established that without . . . a formal
claim and final decision by the contracting officer, there can be no appeal . .
. under the CDA. It is a jurisdictional requirement.@ Milmark Services, Inc. v. United States, 231
Ct. Cl. 954, 956 (1982).
Section 605(a) as
implemented by FAR subpart 33.2, Disputes and Appeals, is the key provision in
determining whether there is a proper or formal claim for purposes of the
CDA. See, e.g., Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc) (definition
of a claim); Transamerica Insurance Corp. v. United States, 973 F.2d
1572, 1576 (Fed. Cir. 1992) (requirement that a claim be submitted for a
decision). [The Federal Acquisition
Streamlining Act] added the six‑year requirement to this key provision,
rather than, for example, to 41 U.S.C. ''
606 or 609, establishing filing periods at the boards and the United States
Court of Federal Claims. We conclude, in
view of the placement of the six‑year provision in ' 605(a), that the requirement that a claim be
submitted within six years after its accrual, like the other requirements in
that section, is jurisdictional. Accord
Axion Corp. v. United States, 68 Fed. Cl. 468, 480 (2005).
Gray Personnel,
Inc., 06-2 BCA at 165,474-75; cf.
John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750 (2008).
The
Tribe=s failure to submit its claims for FYs 1996 and 1997
to the awarding official within six years after they accrued, as required by
section 605(a) of the CDA, deprived this Board of jurisdiction to consider
these claims. We cannot suspend the
running of the six-year time limit any more than we could suspend the
requirements, also found in section 605, that a claim must be submitted to the
contracting officer, that a claim must be submitted in writing, and that a
claim in excess of $100,000 must be certified.
In the absence of a claim which meets all the requirements of section
605, we lack jurisdiction to consider an appeal.
We
grant the motion to dismiss the claims for FYs 1996 and 1997 for lack of
subject matter jurisdiction because the Tribe failed to submit these claims to
the awarding official within six years after they accrued, as required by
section 605(a) of the CDA.
FY 1998 (CBCA 237-ISDA)
The claim for FY 1998 accrued on September 30, 1998,
and the claim was filed with IHS on September 27, 2004. Therefore, the presentment of this claim to
the contracting officer was timely, and the Board has jurisdiction to consider
this claim. 41 U.S.C. ' 605(a).
IHS, however,
asserts that the claim for CSC in 1998 is one for which no relief can be
granted because that year was subject to a cap on appropriations.
We
agree with IHS that Congress restricted the funds available for CSC in FY 1998.
The requirement to fund CSC was subject to the availability of appropriations,
notwithstanding any other provisions of the ISDA. 25 U.S.C. '
450j-1(b). Congress restricted IHS=s FY 1998 appropriation when it provided Anot to exceed $168,702,000 shall be for payments to
tribes and tribal organizations for contract support costs associated with
ongoing contracts . . . .@ Department of
the Interior & Related Agencies Appropriations Act, Pub. L. No. 105-83, 111
Stat. 1543, 1582-83 (1997).
The
fact that funds for CSC were restricted in FY 1998 does not, however,
necessarily mean that the Tribe has failed to state a claim upon which relief
can be granted. If providing the Tribe
with additional funding for CSC for ongoing contracts would have caused IHS to
expend more than $168,702,000 for CSC in FY 1998, then the Tribe had no
statutory or contractual right to such additional funding and its claim for
additional funding would not be one upon which we could grant relief. Greenlee County, Arizona v. United States,
487 F.3d 871 (Fed. Cir. 2007); Babbitt v. Oglala Sioux Tribal Public Safety
Department, 194 F.3d 1374 (Fed. Cir. 1999); Ramah Navajo School Board,
Inc. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996). If, however, IHS could have provided the
Tribe with additional funding for CSC without expending more than $168,702,000
for CSC in FY 1998, the Tribe might be able to establish it had a statutory or
contractual right to such funding up to the amount of the unexpended funds, in
which case its claim would be one upon which we could grant relief. We do not know how much of the $168,702,000
IHS expended during FY 1998.
Because
we do not know whether providing the Tribe with additional funding for CSC for
ongoing contracts would have caused IHS to expend more than $168,702,000 for
CSC for FY 1998, we deny the motion to dismiss the FY 1998 claim for failure to
state a claim upon which relief can be granted.
Decision
The motion to dismiss is GRANTED
as to CBCA 235-ISDA and 236-ISDA. The
motion to dismiss is DENIED as to CBCA 171-ISDA and 237-ISDA.
_________________________________
CANDIDA S. STEEL
Board Judge
We
concur:
______________________________ __________________________________
CATHERINE B. HYATT MARTHA
H. DeGRAFF
Board Judge Board
Judge
On
September 22, 2006, the Tribe filed a motion for leave to file an amended
complaint. The Tribe stated in its
motion that the amended complaint corrects factual inaccuracies with respect to
amounts claimed that were discovered in negotiations with IHS to settle these
claims. The Government=s motion to dismiss, filed on October 30, 2006,
also asserted a response in opposition
to appellant=s motion to amend its complaint. Specifically, IHS contended that the Tribe=s amended complaint added a new claim that had not
previously been presented to the contracting officer for decision as required
by the Contract Disputes Act (CDA), 41 U.S.C. ''
601-613 (2000). The Tribe responded that the amended complaint merely provides
more detail and more accurate data with respect to the same operative facts
that form the basis for the claims already presented to the contracting
officer.
The presiding
judge orally granted the motion to file the amended complaint in a conference
with the parties convened after the Government filed its opposition to the
motion. This ruling was confirmed at
oral arguments that took place on March 22, 2007. Transcript at 51. Citations herein are to the Tribe=s amended complaint.
For
the purposes of this decision, there are no significant differences between
contracts and compacts.
On
January 6, 2007, the Department of the Interior Board of Contract Appeals
(IBCA) was merged with other civilian boards into the Civilian Board of
Contract Appeals (CBCA). Pub. L. No.
109-163, ' 847, 119 Stat. 3136, 3391-95 (2006).
Usually,
the equitable defense of laches is resolved upon motion for summary judgment or
relief or, where there are genuine facts in dispute, following trial. A.C. Aukerman Co. v. R. L. Chaides
Construction Co., 960 F.2d 1020 (Fed. Cir. 1992) (en banc); Houston Ship Repair, Inc. v. Department of
Transportation, DOT BCA 4505, 06-2 BCA & 33,381;
2160 Partners v. General Services Administration, GSBCA 15973, 03-2 BCA & 32,269.
IHS raised the issue in its motion to dismiss so we address it here.
But
see Menominee Indian Tribe of Wisconsin v. United States, No. 1:07cv-00812 (D.D.C. Mar. 24, 2008), reconsideration
denied (Apr. 30, 2008), in which the district court dismissed the Menominee
Indian Tribe=s CSC claim for FY 1995 on the grounds that the claim
was barred by laches. The Board is not
bound by this decision and we reach a contrary conclusion after considering the
arguments raised and facts presented to us.
