Phillips/May Corp. v. United States

United States Court of Appeals for the Federal Circuit
2007-5139

PHILLIPS/MAY CORPORATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

David A. Tomlinson, of Granbury, Texas, argued for plaintiff-appellant.

Dawn S. Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were Jeanne E. Davidson, Director, and Harold D.
Lester, Jr., Assistant Director. Of counsel on the brief was John S. McMunn, Senior
Trial Attorney, United States Department of the Navy, of Alameda, California.

Appealed from: United States Court of Federal Claims

Judge George W. Miller
 United States Court of Appeals for the Federal Circuit

2007-5139

PHILLIPS/MAY CORPORATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-00047, Judge George
W. Miller.
___________________________

DECIDED: April 23, 2008
___________________________

Before LOURIE, GAJARSA, and DYK, Circuit Judges.

DYK, Circuit Judge.

Plaintiff-appellant Phillips/May Corporation (“Phillips”) appeals from a decision of

the United States Court of Federal Claims granting summary judgment in favor of the

government. Because the Court of Federal Claims correctly determined that Phillips’s

complaint was barred by res judicata, we affirm.

BACKGROUND

On April 11, 2001, Phillips was awarded Contract No. N62467-01-D-0257 (“the

contract”), for the design, labor, materials, and equipment necessary to construct the

Religious Ministry Facility at the Naval Air Station-Joint Reserve Base (“NAS-JRB”) in

Fort Worth, Texas. Under the contract, Phillips was responsible for the rehabilitation of
an existing chapel and the construction of a new building next to that chapel. Notice to

proceed on the contract was issued on May 23, 2001, and the project was to be

completed in 265 calendar days. Phillips ultimately completed the work on June 24,

2003—more than 800 days after beginning work. The NAS-JRB accepted the

completed Religious Ministry Facility. Phillips was paid $1,229,385.30 for its work; the

original contract price was increased by $32,052.30 due to contract modifications.

Between July 10, 2003, and November 12, 2003, Phillips submitted to the

Contracting Officer (“CO”) at NAS-JRB ten claims related to its work under the contract.

One of these claims, submitted on November 7, 2003 (“Inspection Claim”), was for

“Delay, Mal-Administration of the Contract, Overzealous Inspection and Impossibility.”

J.A. at 86. The CO failed to act on any of the claims within the sixty days; this failure

constituted a denial of Phillips’s claims under 41 U.S.C. § 605(c)(5), and gave Phillips

the right to appeal. The claims became appealable between September 8, 2003, and

January 11, 2004.

Between October 5, 2003, and January 29, 2004, Phillips appealed all but the

Inspection Claim to the Armed Services Board of Contract Appeals (“Board”). Because

each of the appealed claims involved less than $100,000, Phillips elected to have these

claims tried pursuant to the Small Claims Accelerated Procedure, authorized under 41

U.S.C. § 607(f), which requires the Board to render a decision within 180 days

whenever possible. In those appeals, Phillips sought compensation for costs incurred

while performing the contract, which allegedly resulted from delay caused by the

government’s conduct and from design changes demanded by the government. One of

the nine appealed claims was settled while pending before the Board. The

2007-5139 2
administrative judge (“AJ”) heard the other eight appeals between March 29 and April 2,

2004, and issued decisions on them from the bench. Five of the appeals were denied,

and three were sustained in part and denied in part. Ultimately, the parties entered into

a global settlement agreement with respect to the nine Board appeals, and the Board

entered judgment in accordance with the agreement on June 30, 2005.

As of January 2006, the CO still had not issued a final decision with respect to

the Inspection Claim. On January 19, 2006, Phillips filed an appeal of that claim in the

Court of Federal Claims. On June 9, 2006, the CO denied the claim in its entirety. The

CO’s decision determined that “pursuant to the legal principles of res judicata and

collateral estoppel,” Phillips was precluded from litigating the issues raised by the

Inspection Claim because they were included in its other, finally adjudicated claims.

Defendant-Appellee’s Supplemental App. at 185.

Following the CO’s decision, on October 26, 2006, the government moved for

summary judgment in the Court of Federal Claims, which granted the motion. The court

found that Phillips’s claim involved the same parties as the claims decided in the Board

appeals, that there had been a final judgment on the merits of those appeals, and that

the Inspection Claim was based on the same transactional facts as the Board appeals

and should have been litigated along with those appeals. The court further determined

that Phillips could have appealed the Inspection Claim along with its other claims, and

that Phillips could have elected to forgo the Small Claims Accelerated Procedure on

those other claims in order to litigate all its appeals together. Accordingly, the Court of

Federal Claims held that Phillips was barred from litigating its claim by the doctrine of

claim preclusion.

2007-5139 3
 Phillips timely appealed the decision of the Court of Federal Claims. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the Court of Federal Claims’s decision to grant summary judgment

without deference. Old Stone Corp. v. United States, 450 F.3d 1360, 1367 (Fed. Cir.

2006). Whether a particular claim is barred by res judicata is a question of law, which

we also review without deference. Sharp Kabushiki Kaisha v. Thinksharp, Inc., 448

F.3d 1368, 1370 (Fed. Cir. 2006).

The doctrine of res judicata involves the related concepts of claim preclusion and

issue preclusion. The Court of Federal Claims here relied on claim preclusion, which

refers to “the effect of foreclosing any litigation of matters that never have been litigated,

because of a determination that they should have been advanced in an earlier suit.” 18

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4402 (2d ed. 2002). As the Supreme Court has explained, “when a final

judgment has been entered on the merits of a case, ‘[i]t is a finality as to the claim or

demand in controversy . . . not only as to every matter which was offered and received

to sustain or defeat the claim or demand, but as to any other admissible matter which

might have been offered for that purpose.’” Nevada v. United States, 463 U.S. 110,

129-30 (1983) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1876)). Claim

preclusion applies when “(1) the parties are identical or in privity; (2) the first suit

proceeded to a final judgment on the merits; and (3) the second claim is based on the

same set of transactional facts as the first.” Ammex, Inc. v. United States, 334 F.3d

1052, 1055 (Fed. Cir. 2003). The doctrine is properly applied to the final judgment of an

2007-5139 4
administrative agency, such as a board of contract appeals, that “is acting in a judicial

capacity and resolved disputed issues of fact properly before it which the parties have

had an adequate opportunity to litigate.” United States v. Utah Constr. & Mining Co.,

384 U.S. 394, 422 (1966); see also Sharp, 448 F.3d at 1372.

I

Phillips argues that claim preclusion does not apply here because the Contract

Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383 (“CDA”), specifically permits a

claimant to split claims arising from the same contract between an agency board of

contract appeals and the Court of Federal Claims. The CDA allows contractors a

choice of forum for their appeals:

[I]n lieu of appealing the decision of the contracting officer . . . to an
agency board, a contractor may bring an action directly on the claim in the
United States Court of Federal Claims, notwithstanding any contract
provision, regulation, or rule of law to the contrary.

41 U.S.C. § 609(a)(1).

Phillips argues that section 609(a)(1) allows a contractor to choose the appellate

forum for each of its claims, and that a court may not interfere with the contractor’s

choice. In support of this view, Phillips urges that section 609(d) of the act specifically

contemplates the splitting of claims between the Court of Federal Claims and the

agency boards because it provides for, but does not require, consolidation of such

separate proceedings. Section 609(d) provides:

If two or more suits arising from one contract are filed in the United States
Court of Federal Claims and one or more agency boards, for the
convenience of parties or witnesses or in the interest of justice, the United
States Court of Federal Claims may order the consolidation of such suits
in that court or transfer any suits to or among the agency boards involved.

Id. § 609(d).

2007-5139 5
 Admittedly, the statute is somewhat ambiguous as to whether it permits (1) the

filing of all claims arising from a single contract in separate fora, or (2) only claims that

do not arise from the same transactional facts. We have not previously addressed this

question. However, the history of the CDA makes clear that the statute is not designed

to alter the usual rules of res judicata.

Before the enactment of the CDA, claims for equitable adjustment were required

to be brought before the agency boards of contract appeals in the first instance, and

review under a deferential standard was available in the Court of Claims. Judicial

review of board decisions was, however, limited. 1 Breach of contract claims could be

filed only with the Court of Claims. See Utah Constr., 384 U.S. at 402.

The CDA established the agency boards and the Court of Claims as alternative

initial venues for the litigation of claims both for equitable adjustment and for breach of

contract. Decisions of the boards continued to be reviewable in the Court of Claims

under a deferential standard. See CDA § 8(g), 92 Stat. at 2387. Thus for the first time

a contractor was given a choice of initial forum, as reflected in section 609(a)(1) of the

statute. Indeed, Congress identified “restor[ing] the contractor its right to a day in court”

as one of the “key issues” resolved by the CDA. S. Rep. No. 95-1118, at 11 (1978).

1
See United States v. Wunderlich, 342 U.S. 98, 100 (1951) (holding that
the standard disputes clause in government contracts could bar judicial review of factual
issues “absent fraudulent conduct”); see also S&E Contractors, Inc. v. United States,
406 U.S. 1, 10 (1972) (holding that disputes clause could bar government, as opposed
to contractor, from seeking judicial review even on questions of law, absent claim of
fraud).

2007-5139 6
 As reported from the Senate Committees on Governmental Affairs and the

Judiciary, the section of the CDA that would become 41 U.S.C. § 609 would specifically

have permitted claim splitting. Subsection (d) provided:

Except as otherwise provided in this Act, and notwithstanding any statute
or other rule of law, or any contract provision, every claim founded upon
the same express or implied contract with the United States shall
constitute a separate cause of action for purposes of any suit in a court of
competent jurisdiction, and such court may, in its discretion, consolidate
separate claims for purposes of decision or judgment, or delay acting on
claim pending action on another claim.

124 Cong. Rec. S36263 (daily ed. Oct. 12, 1978) (emphasis added). The bill also

included subsection (e), providing for consolidation of such split claims by the Court of

Claims:

If two or more suits arising from one contract are filed in the Court of
Claims and one or more agency boards, for the convenience of parties or
witnesses, in the interest of justice, the Court of Claims may order the
consolidation of such suits in that court or transfer any suits to or among
the agency boards involved.

Id. (emphasis added). Subsection (d) was removed from the bill before it was passed,

and subsection (e) in the original bill became current subsection (d) in the statute (with

the designation of the Court of Claims being changed first to the United States Claims

Court and then to the Court of Federal Claims). Thus Congress considered and

rejected statutory language in original subsection (d) that would have altered the usual

rules of res judicata by allowing claims based on the same contract to constitute

separate claims regardless of their factual overlap.

The elimination of original subsection (d) strongly suggests that Congress did not

intend to allow contractors to avoid the effects of claim preclusion by splitting factually

related claims. For example, in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749

2007-5139 7
(2006), the Supreme Court considered whether the Detainee Treatment Act of 2005,

Pub. L. No. 109-148, 119 Stat. 2739 (“DTA”), stripped the federal courts of jurisdiction

over habeas corpus actions filed by detainees and pending on the date the statute was

enacted. See 126 S. Ct. at 2763. Earlier versions of the bill had specifically made the

habeas jurisdiction-stripping provision applicable to pending actions, but that language

had been deleted. The Court held the habeas jurisdiction-stripping provision

inapplicable to pending cases in part because Congress “rejected earlier proposed

versions of the statute that would have included [the habeas provision] within the scope

of that directive [making certain provisions retroactive].” Id. at 2766. The Court

concluded that “Congress’ rejection of the very language that would have achieved the

result the Government urges weighs heavily against the Government’s interpretation.”

Id.; see also Doe v. Chao, 540 U.S. 614, 622-23 (2004) (rejecting an interpretation of

the Privacy Act that would allow presumed damages when “Congress cut out the very

language in the bill that would have authorized any presumed damages”). Similarly, in

this case, the fact that Congress rejected a provision of the CDA that would have

allowed claim splitting without regard to the usual rules of claim preclusion likewise

weighs heavily against Phillips’s proposed interpretation of the statute to achieve that

result.

In addition, the amendment deleting the original subsection (d) was accompanied

by the following explanation from Senator Robert C. Byrd, then Senate Majority Leader,

who proposed the amendment:

The amendment . . . is out of a concern that the section might be
interpreted as permitting the contractors to split claims arising out of the
same set of facts, thereby needlessly multiplying causes of action and
encouraging forum shopping. It is not the intention of the committees to

2007-5139 8
 change the present law regarding joinder, compulsory counterclaims and
definition of separate claims.

124 Cong. Rec. S36267 (daily ed. Oct. 12, 1978) (emphases added). This statement

could not have been clearer. Congress definitively rejected the idea that the CDA was

abrogating the doctrine of claim preclusion and permitting the splitting of claims based

on the same set of transactional facts. 2 We reject Phillips’s argument to the contrary. 3

II

Phillips also argues, however, that, even under the usual rules of claim

preclusion, it was permitted to split its claims in this case because the claims could not

have been appealed together. See Restatement (Second) of Judgments § 26(1)(c)

(1982) (explaining that the general rule does not apply when “plaintiff was unable to rely

on a certain theory of the case or to seek a certain remedy or form of relief in the first

action because of the subject matter jurisdiction of the courts or [other] restrictions on

their authority”). Phillips asserts that it could not have appealed the Inspection Claim to

the Board along with its other nine claims.

2
Curiously, neither party mentions the amendment to the bill deleting
original subsection (d), or the explanatory legislative history. Phillips’s failure to mention
this history is particularly noteworthy because it does cite and rely on legislative history
of the statute prior to the amendment in arguing that the CDA permits claim splitting.
See S. Rep. No. 95-1118, at 30-31 (1978) (describing the effect of original subsection
(d), later deleted).
3
We note that the Sixth Circuit in passing has stated that “[t]he CDA . . .
departs from the general policy in federal civil procedure prohibiting the splitting of
claims.” United States v. Kasler Elec. Co., 123 F.3d 341, 347 n.11 (6th Cir. 1997)
(citing S. Rep. No. 95-1118, at 30-31). This view of the effect of the CDA is, in our view,
incorrect, and was reached relying on the same legislative history cited by Phillips here,
which describes the effect of original subsection (d), the provision that was deleted from
the bill before it was passed.

2007-5139 9
 Phillips is incorrect that it could not have appealed all ten claims at the same

time. Phillips points to two alleged obstacles to a combined appeal. First, it urges that

at the time the nine claims were appealed to the Board, the CO had not rendered a

decision on the Inspection Claim. The Inspection Claim became appealable on January

6, 2004—more than three weeks before Phillips appealed the last of its other claims to

the Board. Phillips thus could have chosen to appeal the Inspection Claim to the Board

at the same time as the others. Even if Phillips were correct that the Inspection Claim

could not have been appealed at the same time as the others, it was within Phillips’s

control to make all ten claims ripe for review at once. This is not a situation in which the

claims were required to be brought before different contracting officers, as in Florida

Power & Light Co. v. United States, 198 F.3d 1358, 1360 (Fed. Cir. 1999). Phillips was

obligated to prosecute its claims in the same proceeding; it could not avoid the

application of res judicata through strategic delay.

Phillips also urges that it could not have filed all its appeals together in a single

proceeding because the Inspection Claim did not qualify for the Small Claims

Accelerated Procedure under which the other claims were resolved. Although Phillips is

correct that the Small Claims Accelerated Procedure was not available for the

Inspection Claim, which sought more than $100,000 in damages, nothing in the CDA

indicates that a contractor has an absolute right to that accelerated procedure that

prevents the application of claim preclusion. Again, Phillips could have joined the larger

claim with the others. Only its own strategic choice prevented the joinder of all claims.

2007-5139 10
 III

Finally, Phillips argues that it was permitted to split its claims without being

subject to claim preclusion because the claims are factually distinct. As explained

above, the general rule is that claim preclusion applies when “the second claim is based

on the same set of transactional facts as the first.” Ammex, 334 F.3d at 1055. In

general, a party will be permitted to split claims if, for example, the two claims involve

different sets of transactional facts. See Fla. Power & Light, 198 F.3d at 1360-61

(finding res judicata inapplicable when “the two sets of claims involve[d] not only

different time periods, but also different agencies with different contracting officers and

different statutory mandates regarding pricing policy”). According to the Restatement,

the question of whether two claims involve the same set of transactional facts is “to be

determined pragmatically, giving weight to such considerations as whether the facts are

related in time, space, origin, or motivation, whether they form a convenient trial unit,

and whether their treatment as a unit conforms to the parties’ expectations or business

understanding or usage.” Restatement (Second) Judgments § 24(2) (1982). This rule

has been refined in the contracts context, so that claims under a single contract

generally must be brought together. See Wright, Miller & Cooper § 4408 (“Contract

cases often can be resolved by a simple rule that the first suit must claim every breach

that has then occurred.”).

Our predecessor court recognized this rule in Container Transport International,

Inc. v. United States, 468 F.2d 926 (Ct. Cl. 1972), concluding that res judicata would bar

a contract claim for services performed after shipped goods were tendered for delivery,

when an earlier action had determined the right to additional compensation for the

2007-5139 11
actual shipment of the goods. A single contract covered both the shipment and the

post-shipment services. The court stated that, “normally, a single claim . . . arises out of

each single, indivisible contract,” and held that res judicata should bar the second claim

because “[t]here was no obstacle to putting both aspects of the demand in one suit, and

that would be the normal expectation for a claimant [in the circumstances].” Id. at 928-

29; 4 cf. Case, Inc. v. United States, 88 F.3d 1004, 1012 (Fed. Cir. 1996) (“[T]he claim in

Case II was barred by the doctrine of res judicata because it was subject to the same

accord and satisfaction . . . that was fully adjudicated in Case I.”). While Container was

decided before the enactment of the CDA in 1978, as discussed above, we see nothing

in the CDA that was designed to change the rule adopted in that case.

The presumption that claims arising out of the same contract constitute the same

claim for res judicata purposes may be overcome by showing that the claims are

unrelated. See Wright, Miller & Cooper § 4409 (“In some circumstances . . . a different

rule may be applied on the excuse that the several obligations created by a single

contract are so far separable or divisible that each constitutes a separate claim or cause

of action.”); see also Placeway Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed.

Cir. 1990) (stating that “if the claims . . . will necessitate a focus on a different or

unrelated set of operative facts as to each claim, then separate claims will exist,” and

holding that under the circumstances three claims under a contract were separate).

4
The court did not bar the claim, however, because its holding conflicted
with existing precedent, and the court found that “[p]rospective overruling” of the earlier
case was appropriate because “a retroactive application of the new rule would be
inequitable, producing injustice or undue hardship.” Container, 468 F.2d at 930. Such
an approach is no longer appropriate. See Harper v. Va. Dep’t of Taxation, 509 U.S.
86, 89-90 (1993).

2007-5139 12
 Here we agree with the Court of Federal Claims that there is extensive factual

overlap between the Inspection Claim, which was appealed to that court, and the nine

claims appealed to the Board, and that the claims are not separable. The Inspection

Claim included a number of allegations related to design changes and failure to follow

the approved design. For example, it alleged that the government “vacillated upon

which standard to follow” because it used the original design plan to generate the

“punchlist” for approving the final construction, even though the design had since been

revised and the government had approved the revisions. J.A. at 91. One of the nine

Board appeals, claim 54421, was based entirely on the allegation that “[t]he Navy

[provided] approval to [Phillips’s] final design but they failed to follow this design

numerous times,” instead “revert[ing] back to [the original design plan] to require

additional or changed work.” J.A. at 73.

The Inspection Claim alleged that the government delayed by requiring a

complete redesign of the facility after the initial design submitted by Phillips had been

accepted by the government. J.A. at 96-97. Claim 54393, another one of the Board

appeals, likewise alleged that after the award of the contract, “[a]t the first meeting

between the Parties, [Phillips’s] design was rejected requiring a new design to be

developed.” J.A. at 64. Phillips acknowledged in Claim 54393 and in the Inspection

Claim that the two claims are related. See J.A. at 65; see also id. at 97 n.1. The

Inspection Claim relates to the first seventeen days of delay, which were added by a

contract modification that did not change the cost of the contract, while Claim 54393

relates to compensation for an additional sixteen days of delay allegedly caused by the

2007-5139 13
redesign requirement. The two claims plainly are based on a single set of operative

facts.

The Inspection Claim also alleged that the government’s Quality Assurance

Representative “asked for certain information from [Phillips] before he would approve

steel drawings” for the foundation, and that this “resulted in major changes to the

foundation design.” J.A. at 111. Phillips acknowledged in the Inspection Claim that

these “major changes” were “the subject of a separate claim to be submitted.” Id.

Claim 54484, one of the Board appeals, alleged that the “approved foundation . . . was

not the one finally constructed because of . . . changes required by the Government’s

[Quality Assurance] Representative,” and demanded payment for the delay caused by

these changes. J.A. at 82.

The bulk of the Inspection Claim related to overzealous and delayed inspection,

including allegations: that the government improperly delayed in finalizing a testing and

balancing report for the facility’s HVAC system and refused to perform the final punch-

out inspection without this report; that the government developed an “enormous list of

punchlist items” and unnecessarily re-inspected the items on it several times; that the

government improperly rejected “among other things, Mexican tile, linoleum, and panels

from Canada” under the Buy American Act, despite the application of NAFTA to the

contract; and that the government’s reason for delay in finalizing Phase I of the project,

which consisted of the construction of the new religious facility, was that “[t]he Chaplain

wasn’t ready to move” out of the existing facility, which was to be remodeled as part of

Phase II, and into the new facility. J.A. at 93-95. All of these allegations overlap with

2007-5139 14
two of the nine claims appealed to the Board. 5 Claim 54311 alleged that the

government spent two and a half months inspecting Phase I, “a clear example of over

inspection by the Navy,” and that the delay was caused by the Navy’s chaplain not

being ready to move out of the existing Chapel area and into the new facilities “as early

as they could have,” thus delaying the start of the Phase II remodeling. J.A. at 45.

Claim 54348 alleged that the government improperly rejected, as violations of the Buy

American Act, “German linoleum,” “certain Mexican ceramic tile,” and “[s]everal other

foreign-made items,” all of which Phillips had provided in reliance on NAFTA’s

application to the contract. J.A. at 57.

Given the substantial factual and evidentiary overlap between the Inspection

Claim and several of the claims appealed to the Board, there is no justification here for

departing from the general rule that all claims arising out of the same contract constitute

the same claim for purposes of res judicata. We therefore conclude that the Inspection

Claim and the Board appeals were based on the “same set of transactional facts.”

Ammex, 334 F.3d at 1055. Because the parties do not dispute that the claims involve

the same parties or that the Board appeals proceeded to final judgment on the merits,

all three factors of the test for application of claim preclusion are met here. See id. The

Court of Federal Claims correctly determined that Phillips’s complaint was barred by

claim preclusion and granted the government’s motion for summary judgment. Phillips’s

5
The Court of Federal Claims stated that “[a]lthough plaintiff raised a claim
of over-zealous inspection during the hearing on [Board Claim] 54331, the [Board]
decision did not rule on that claim, and over-zealous inspection was not addressed in
any of the other appeals.” Phillips/May Corp. v. United States, 76 Fed. Cl. 671, 673
(2007). As shown in the text, however, other claims did in fact address overzealous
inspection.

2007-5139 15
argument that the application of claim preclusion in this case constitutes a denial of due

process is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the Court of Federal Claims is

affirmed.

AFFIRMED

COSTS

No costs.

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