PSBCA No. 6646


Note: This Order is provided for information only and is nonprecedential

October 3, 2016

THUNDERCAT TECHNOLOGY, LLC v. UNITED STATES POSTAL SERVICE

PSBCA No. 6646

ORDER AND MEMORANDUM OF TELEPHONE CONFERENCE

On October 3, 2016, the Board convened a telephone conference with Elizabeth Dwyer, Esq., representing Appellant, and with Richard Rho, Esq., representing Respondent.  This Order summarizes the conference and revises the schedule for further proceedings.

Jurisdiction
Respondent’s answer included an affirmative defense that the Board lacks jurisdiction.  Mr. Rho explained the basis for that assertion.  However, because Mr. Rho is continuing to investigate relevant facts and law, he is not yet prepared to file a motion to dismiss.  Any motion to dismiss for lack of jurisdiction shall be filed promptly, in consideration of the expedited schedule of this case and as provided in the Board’s rules.  39 C.F.R. § 955.6(a).

Expedited procedures
Respondent has filed a motion opposing the application of the Board’s expedited procedures which Appellant had elected.  Exclusively citing Unification Church v. I.N.S., 762 F.2d 1077 (D.C. Cir. 1985) by analogy, Respondent emphasized Appellant’s statement, in its notice of appeal, that ePlus, a company serving as Appellant’s “finance subcontractor,” was the “real party in interest.”  Respondent argued that the eligibility of ePlus should be assessed for purposes of determining eligibility for expedited procedures, rather than the eligibility of Thundercat Technology, Inc., the party to the contract at issue and the nominal appellant.

The real party in interest analysis on which Respondent exclusively relies does not apply to jurisdictional considerations in Contract Disputes Act (CDA) actions.  To the contrary, Unification Church expressly has been rejected by the Boards for CDA actions, and we decline to follow it here.  See SCL Materials and Equip. Co., IBCA No. 3866-97A, 98-2 BCA ¶ 30,000; Sentry Ins., VABCA No. 2617E, 93-3 BCA ¶ 26,124; Teton Constr. Co., ASBCA Nos. 27700, 28968, 87-2 BCA ¶ 19,766; see also Sw. Marine v. United States, 43 F.3d 420 (9th Cir. 1994).  Whether ePlus is the assignee of the proceeds of Thundercat’s contract similarly is not relevant to this analysis.  See Weststar, Inc., ASBCA Nos. 52837, 53171, 03-1 BCA ¶ 32,248 (assignee of contract proceeds not a contractor for CDA jurisdictional purposes). 

We conclude that the party in privity of contract with the government, in this case, Thundercat, is the proper entity that must satisfy the eligibility requirements for expedited procedures.  As Respondent has not challenged Thundercat’s eligibility, its motion is denied and expedited procedures will continue to apply. 

Notwithstanding this conclusion, the Board agrees with Respondent that the current state of the record is unclear regarding assignment matters.  Appellant is expected to clarify this confusing maze.

Ms. Dwyer suggested the possibility of mediation.  Any mediation request must be jointly submitted and should be filed promptly in consideration of the expedited schedule.  If mediation occurs, absent a request by Appellant to suspend the expedited procedures schedule during mediation, the parties’ mediation efforts shall occur simultaneously with their hearing preparation.

Schedule
The schedule is revised as follows.

  1. Completion of discovery remains scheduled for October 28, 2016.  The Board reminds the parties that discovery can be restricted or eliminated at the Board’s discretion in this expedited case.  39 C.F.R. § 955.13(a)(4).
  2. Witness lists, which shall identify the name, employer, and location of each witness, shall be filed by November 4, 2016.
  3. Objections, if any, to proffered witnesses or appeal file documents shall be filed by November 10, 2016.
  4. A pre-hearing telephone conference will occur on November 28, 2016 at 3:00 P.M.
  5. The hearing in the Board’s Arlington, Virginia hearing room is re-scheduled to December 1, 2016.  The Board will order expedited transcripts.
  6. Post-hearing briefs, if any, are due by December 9, 2016. 
  7. The appeal is to be decided, if possible, by January 2, 2017.

Gary E. Shapiro
Administrative Judge
Chairman