POSTSCRIPT IV THE CDA SUM CERTAIN REQUIREMENT

37 Nash & Cibinic Rep. NL ¶ 41

Nash & Cibinic Report | June 2023

The Nash & Cibinic Report

Guest Appearance

A special column by Nathaniel E. Castellano, Special Counsel in the government contracts practice at Jenner & Block LLP. The ideas presented here, particularly those that may prove to be in error, are the author’s own and should not be attributed to any other.

¶ 41. POSTSCRIPT IV: THE CDA “SUM CERTAIN” REQUIREMENT

This Report has been covering the ludicrous tangle of procedural caselaw generated by the purportedly jurisdictional requirement that a claim under the Contract Disputes Act state a “sum certain.” See Contract Disputes Act Claims: The “Sum Certain” Requirement, 26 N&CR ¶ 41, and Postscripts at 30 NCRNL ¶ 55, 34 NCRNL ¶ 23, and 35 NCRNL ¶ 40. Thankfully, a panel of U.S. Court of Appeals for the Federal Circuit judges is finally reconsidering whether the sum certain rule meets the test to qualify as jurisdictional. On May 5, 2023, the panel, Judges Sharon Prost, Richard Linn, and Tiffany P. Cunningham, heard arguments in connection with ECC International Constructors, LLC v. Secretary of the Army, Fed. Cir. Nos. 21-2323, 22-1368, recordings available at https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/. By the sound of things, the panel assigned to this case seems prepared to correctly confirm that there is no jurisdictional requirement for a CDA claim to include a sum certain.

The appeal involves a classic example of what the Supreme Court has deemed a “drive-by jurisdictional ruling.” Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). The Armed Services Board of Contract Appeals dismissed the contractor’s claims for purported lack of jurisdiction following years of litigation—after discovery, hearings, and post-hearing briefing—on the basis that the contractor’s single claim presented to the Contracting Officer constituted many distinct claims, each of which should have included its own sum certain. ECC International Constructors, LLC, ASBCA 59586, 21-1 BCA ¶ 37,862 2021 WL 2311891, 63 GC ¶ 184, recons. denied, 21-1 BCA ¶ 37,897. 2021 WL 3235160.

Although the issue was not briefed, the Federal Circuit panel questioned sua sponte whether the sum certain rule qualifies as jurisdictional. Even without briefing, the issue is glaring and the result should be inevitable.

The U.S. Supreme Court has consistently warned lower courts to think carefully before elevating procedural rules to jurisdictional status, emphasizing that result is only appropriate where Congress speaks in jurisdictional terms when imposing the requirement. As procurement practitioners know all too well, giving jurisdictional status to procedural rules can create havoc and extraordinary unfairness during the dispute resolution process. The Supreme Court’s most recent statement of these principles reads as follows from its March 31, 2023 opinion in Wilkins v. U.S., 143 S. Ct. 870, 875–76 (2023) (cleaned up):

[T]his Court has emphasized the distinction between limits on the classes of cases a court may entertain (subject-matter jurisdiction) and nonjurisdictional claim-processing rules, which seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.…

To police this jurisdictional line, this Court will treat a procedural requirement as jurisdictional only if Congress clearly states that it is. This principle of construction is not a burden courts impose on Congress. To the contrary, this principle seeks to avoid judicial interpretations that undermine Congress’ judgment. Loosely treating procedural requirements as jurisdictional risks undermining the very reason Congress enacted them.

Procedural rules often seek to promote the orderly progress of litigation within our adversarial system. Limits on subject-matter jurisdiction, in contrast, have a unique potential to disrupt the orderly course of litigation. Branding a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system. For purposes of efficiency and fairness, our legal system is replete with rules like forfeiture, which require parties to raise arguments themselves and to do so at certain times. Jurisdictional bars, however, may be raised at any time and courts have a duty to consider them sua sponte. When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, many months of work on the part of the attorneys and the court may be wasted. Similarly, doctrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed. Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.

Given this risk of disruption and waste that accompanies the jurisdictional label, courts will not lightly apply it to procedures Congress enacted to keep things running smoothly and efficiently. Courts will also not assume that in creating a mundane claims-processing rule, Congress made it unique in our adversarial system by allowing parties to raise it at any time and requiring courts to consider it sua sponte. Instead, traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.

See also Schwartz, Fixing a Failed Jurisdictional Revolution, 90 Miss. L.J. 729, 730 (2021).

The outcome here should not be in doubt. The notion that a CDA claim must state a sum certain cannot qualify as jurisdictional under the Supreme Court’s test: the sum certain rule is not even stated in the statute. Congress did not say anything about a sum certain when enacting the CDA, much less impose a sum certain rule in jurisdictional terms.

Demoting the sum certain rule from jurisdictional status would be the Federal Circuit’s second major step towards correcting its CDA jurisdiction jurisprudence. The first came in a 2014 opinion authored by Judge Timothy B. Dyk, recognizing that the CDA’s six-year statute of limitations could not qualify as jurisdictional. Sikorsky Aircraft Corp. v. U.S., 773 F.3d 1315 (Fed. Cir. 2014), 56 GC ¶ 403. See also Midatlantic Construction & Design Associates, Inc. v. U.S., No. 22-447C, 2023 WL 3269668 (Fed. Cl. May 5, 2023) (Bonilla, J.).

And these should be only the earliest cracks in false jurisdictional fortress that currently obstructs the CDA claim resolution process. As I have detailed elsewhere, once the Supreme Court’s jurisprudence is properly applied, none of the CDA “claim submission” rules qualify as jurisdictional, nor do the requirements for certification or timely appeal. See Castellano, After Arbaugh: Neither Claim Submission, Certification, Nor Timely Appeal Are Jurisdictional Prerequisites to Contract Disputes Act Litigation, 47 Pub. Cont. L.J. 35 (Fall 2017); Castellano, The End of Days for Litigation Over Contract Disputes Act Jurisdiction, 56-SUM Procurement Law. 1 (Summer 2021); Dateline September 2021, 35 NCRNL DATE SEPT (Sept. 2021); Manos, 3 Government Contract Costs & Pricing § 89:5. Nathaniel E. Castellano

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