[00:00:00] Speaker 01: Fixed number 21-5242, probably Government Services Inc, a balance, versus General Services Administration and Robin Carnahan in our official capacity as Administrator of the General Services Administration. [00:00:14] Speaker 01: Mr. Boland for the balance, Mr. Hazel for the balance. [00:00:18] Speaker 03: Good morning, Council. [00:00:19] Speaker 03: Mr. Boland, please proceed when you're ready. [00:00:22] Speaker 00: Good morning, your honors. [00:00:24] Speaker 00: I'm James Boland representing Crowley Government Services. [00:00:27] Speaker 00: May it please the court. [00:00:29] Speaker 00: As this court made clear in Toodle, the Tucker Act cannot deprive a district court of jurisdiction if the claims court does not have jurisdiction over the complaint. [00:00:39] Speaker 00: Count one of Crowley's complaint below alleges that GSA is violating the Contract Disputes Act finality clause. [00:00:48] Speaker 00: Crowley seeks declaratory and injunctive relief only to compel GSA to stop conducting unlawful audits and audits that are in direct conflict with the final and conclusive decisions of TransCom's contracting officer. [00:01:03] Speaker 00: the decisions that were issued under the CDA. [00:01:06] Speaker 00: Neither the district court nor the government has yet explained the basis for the claims court jurisdiction over these specific non-monetary claims against GSA. [00:01:17] Speaker 00: The district court did not even mention the CDA in its decision, dismissing Crowley's case for lack of jurisdiction, yet that is central to count one of Crowley's case here. [00:01:28] Speaker 00: In fact, the district court in its decision, I think all but admitted or at least acknowledged the struggle to come up with what jurisdiction would exist in the claims court saying, and this is on JA 263, that this complaint does not fit nicely within the criteria for claims court jurisdiction. [00:01:49] Speaker 00: Under Toodle, this court's precedent, that means the Tucker Act does not impliedly forbid jurisdiction in the district court. [00:01:58] Speaker 00: The government, I think on page 22 of the government's brief is- Can I ask you a question about the Toodle rule that you've been relying on? [00:02:07] Speaker 03: Is it Toodle? [00:02:10] Speaker 03: Yes. [00:02:13] Speaker 03: Under that rule, would that even accommodate a situation in which it's by virtue of artful pleading that a party styles its complaints so that it would not fit within the claims court's jurisdiction? [00:02:27] Speaker 03: Because as I understand the doctrine, at least in circumstances in which it's only a matter of artful pleading that a claim is configured so that it wouldn't fit within the claims course jurisdiction. [00:02:39] Speaker 03: Well, then we disregard the artful pleading and think about [00:02:43] Speaker 03: the complaint as if it would be configured without the kind of artful effort to avoid claims court jurisdiction and we reconceptualize it as a case that would fit within the claims course jurisdiction for purposes of assessing whether there's a PA jurisdiction and other courts. [00:02:59] Speaker 00: Well, in the question if [00:03:04] Speaker 00: In this case, I don't think the district court found that this was all artful pleading and I think that, you know, if there's a finding that that's all what's happening and a complaint is carefully crafted to allege what would be a claim under the Tucker Act. [00:03:26] Speaker 00: I mean, let me put it this way. [00:03:30] Speaker 00: Ultimately, the claims court, you have to identify the claims court's basis for jurisdiction over the claim that's raised. [00:03:37] Speaker 00: And in this case, in account one, we have alleged specifically that GSA has violated the finality clause of the Contract Disputes Act. [00:03:47] Speaker 00: That's a claim, that's a non-monetary claim. [00:03:49] Speaker 00: It alleges a statutory violation. [00:03:52] Speaker 00: And it's a claim that we are not aware of any reported decision out of any court addressing this issue where another federal- So I guess I'm not necessarily saying that this would mean that you would lose. [00:04:05] Speaker 03: I'm only asking for my own purposes and understanding the way you conceive of the doctrines fitting together. [00:04:11] Speaker 03: And I guess for the purposes of the Tudor Rule, one way to look at it is to say, [00:04:15] Speaker 03: look, we just look at the claim that's been asserted and we ask whether that claim could come within the claims court's jurisdiction. [00:04:21] Speaker 03: If it does, then it triggers the possibility that that jurisdiction is exclusive. [00:04:24] Speaker 03: If it doesn't, then we never just even get into the inquiry, which is where you started. [00:04:28] Speaker 03: And my only question is, is that true or do we at least ask whether the claim that's been asserted could be brought within the claims court or [00:04:37] Speaker 03: a claim that's basically the same thing, it's not artfully pled to avoid claims court jurisdiction. [00:04:43] Speaker 03: Should we look beyond actually the claim that's been asserted and we look to something that at least expands the circle so that it encompasses the non-artfully pleaded variant of that claim to determine whether it would fit within the claims court's jurisdiction? [00:04:56] Speaker 03: Yes. [00:04:56] Speaker 05: Haven't we been told to look at the relief sought? [00:05:01] Speaker 05: Here, the relief sought outweighs the monetary. [00:05:07] Speaker 05: You know, you want GSA to quit auditing these things that are not transportation bills, which I think is the only thing they can under the 1940 Act. [00:05:22] Speaker 05: But the way I've looked at this case is to look at what relief you're seeking. [00:05:31] Speaker 00: Yes, Your Honor. [00:05:33] Speaker 00: And I think to answer the previous question as well, I think that you do look at the relief, and I think that is what the case law and precedent says. [00:05:42] Speaker 00: But I think there is that extra step where you do have to make sure that the complaint is not simply artful pleading to avoid claims court jurisdiction. [00:05:55] Speaker 02: All right, so you are seeking non monetary relief to a certain extent when we're looking at the relief, but we have to determine whether or not it's non negligible that's my understanding of the of the test So how do we go about evaluating that in this case. [00:06:13] Speaker 00: So the question of whether our claim is in essence for money, Kidwell and the line of cases, Tuttle, Smalls, Vietnam Veterans, those decisions have all made very clear that you have to look at whether there's considerable value to the non-monetary aspect of the claim. [00:06:34] Speaker 00: And of course, in this case, we're not explicitly seeking money. [00:06:37] Speaker 00: So you're sort of looking at whether there would be [00:06:40] Speaker 00: is a negligible in comparison. [00:06:42] Speaker 00: And I think the 10th Circuit and 3rd Circuit decisions in Hahn and Francis Haidt underlying this court's decision in Kidwell, those cases talked about prospective relief. [00:06:53] Speaker 00: Is the non-monetary relief, does it provide prospective relief? [00:06:56] Speaker 00: Does it affect future actions or ongoing relationships? [00:06:59] Speaker 00: That's exactly what Crowley is seeking here. [00:07:02] Speaker 00: You know, we are performing a contract with the transportation command. [00:07:08] Speaker 00: We have received final decisions from the contracting officer, favorable final decisions, interpreting the contract the same way we do. [00:07:15] Speaker 00: And yet GSA is stepping in and interfering with that and saying no. [00:07:20] Speaker 00: We're stuck in the middle between two agencies and GSA is asserting its right to subordinate TransCom's authority under the CDA. [00:07:31] Speaker 00: We have two years left in this contract. [00:07:32] Speaker 00: That is, so we so we absolutely seek perspective relief and you know and affecting ongoing relationships, as found in the Han and Francis height decisions. [00:07:41] Speaker 00: I would I would also note that. [00:07:43] Speaker 00: In the district court's analysis of the harm, the court came up with a 200 to 1 ratio of economic harm. [00:07:52] Speaker 00: What the court perceived would be our monetary relief. [00:07:54] Speaker 00: First of all, I think that this court's precedent says you're not supposed to look at it and speculate. [00:08:00] Speaker 00: Vietnam veterans even said that when money is automatic, if you obtain an injunction or declaratory relief in district court and money is automatic, you still don't look at that. [00:08:13] Speaker 00: But the court looked only at the financial harm that we identified in our preliminary injunction motion seeking irreparable harm. [00:08:23] Speaker 00: We mentioned $187,000 of administrative costs that the ongoing audits were costing Crowley. [00:08:28] Speaker 00: We identified that number simply to show some irreparable harm and as part of the balance of harms analysis. [00:08:35] Speaker 00: The district court relied only on that number to say that our harm, our non monetary harm was negligible by citing our monetary harm that the district court did not even look at the non monetary harm that we were that we addressed, including the desire and need for perspective relief, the impact to this of the ongoing effort. [00:08:55] Speaker 00: Just for the court's benefit, in the five months since we brought this suit, GSA has issued another 12,000 individual audit determinations, 12,000. [00:09:05] Speaker 00: It is an ongoing burden for Crowley to deal with that. [00:09:08] Speaker 00: It's diverting our ability to perform the contract and to spend resources where we need to. [00:09:12] Speaker 00: The district court did not consider any of that value. [00:09:17] Speaker 02: So, yes, I am also interested in how these tests work together, you know, in deciding whether or not there's Tucker Act jurisdiction and I'm wondering about the notion of whether or not the claims that you're bringing are actually contractual and what [00:09:41] Speaker 02: What result from a determination if we were to decide that they're essentially contractual is that your position that the Tucker act would still not apply under those circumstances. [00:09:54] Speaker 00: But I think I think the Tucker act does have exclusive jurisdiction over contractual claims against against the government. [00:10:01] Speaker 00: Our argument in this case is that our claim against GSA is not and cannot be contractual because GSA is not a party to any contract with Crowley. [00:10:11] Speaker 00: So I think this court's decision in Megapulse has made clear that some cases, some torts, for example, rely on the existence of a contract. [00:10:20] Speaker 00: And sometimes, and we sort of analogize our case almost to a tortuous interference type case where [00:10:27] Speaker 00: where a breach of contract, it might be an element of the action so it's so it's not just relevant but essential, but it's a tort it's not it's not a case sounding and contract. [00:10:40] Speaker 00: Our allegation against GSA that they are violating the CDA's finality clause, if successful, would not compel GSA to comply with a GSA contractual obligation to Crowley because none exists. [00:10:53] Speaker 00: So our claim cannot be contractual as to GSA, even though it relates to a government contract that Crowley has. [00:11:00] Speaker 02: And I can conceive of a situation, maybe it's not the one that's here, [00:11:05] Speaker 02: in which there may be an essentially contractual claim, even if the defendant is not a party. [00:11:14] Speaker 02: So I wonder whether you need to go as far as saying, if the defendant is not a party, you could never find that there is an essentially contractual claim. [00:11:26] Speaker 00: I don't know in that sort of, you know, whether sort of a bright line rule would exist. [00:11:31] Speaker 00: I mean, certainly, you know, without thinking about whether there would be type, you know, maybe another agency was a beneficiary of the contract. [00:11:39] Speaker 00: But, you know, sort of a third party beneficiary theory. [00:11:42] Speaker 00: But in this case, you know, GSA is not part of this contract. [00:11:45] Speaker 00: Crowley never agreed to enter into any agreement with GSA. [00:11:50] Speaker 00: And again, and I would emphasize that in the district court's decision below, the only decision, the only authority for the court's conclusion that our case here was essentially contractual was spectrum leasing. [00:12:03] Speaker 00: And that's the fundamental difference. [00:12:04] Speaker 00: Spectrum leasing involved a contract with GSA. [00:12:08] Speaker 00: And in that case, I think spectrum leasing did try to artfully plead around the claims court jurisdiction by going to district court. [00:12:15] Speaker 00: And to ultimately challenge the liquidated damages that GSA assessed against Spectrum under its contract. [00:12:22] Speaker 00: It was always a contract case. [00:12:24] Speaker 00: And GSA's obligation or right to the money was always based on its contract with Spectrum. [00:12:29] Speaker 00: None of that's true with our case here. [00:12:34] Speaker 00: I see that my time is over. [00:12:36] Speaker 03: Let me make sure my colleagues don't have additional questions for you. [00:12:38] Speaker 03: We'll give you a little time for rebuttal. [00:12:40] Speaker 05: I do have a question about your alternative ultra virus claim. [00:12:47] Speaker 05: Don't spend a lot of time on it, but could you just address it? [00:12:52] Speaker 00: Sure. [00:12:53] Speaker 00: Thank you, Your Honor. [00:12:54] Speaker 00: Just briefly, our view is that one of the elements for ultra-virus is that statutory preclusion of review is implied. [00:13:02] Speaker 00: That's what the district court found here. [00:13:04] Speaker 00: So if Crowley's claim is implied, or sorry, I should say if the Tucker Act impliedly precludes review in the district court under the APA, [00:13:15] Speaker 00: then that's the first element of an ultra-virus claim. [00:13:22] Speaker 05: What's the extreme error of law, the third poem? [00:13:27] Speaker 05: What is the extreme error of law under your theory, the third poem? [00:13:33] Speaker 00: The extreme error of law is the GSA's violation of the finality clause. [00:13:39] Speaker 00: It's extraordinary. [00:13:40] Speaker 00: This has never happened. [00:13:41] Speaker 00: In our understanding, there's no reported case where another agency has done this. [00:13:47] Speaker 00: Not just auditing a CDA contract, but where a contracting officer under a CDA contract has issued final and conclusive determinations [00:13:57] Speaker 00: regarding the interpretation of the contract. [00:14:01] Speaker 00: And even in this case, Transcom even went and told GSA to stop auditing on that basis. [00:14:06] Speaker 00: So not only did he interpret the contract, he told GSA to stop and GSA is ignoring it. [00:14:11] Speaker 00: And GSA is continuing to do what they want to do. [00:14:14] Speaker 00: That's extraordinary. [00:14:15] Speaker 00: We're not aware of this ever happening. [00:14:16] Speaker 00: So I think if anything, there ought to be a basis to stop that under ultra-virus. [00:14:22] Speaker 03: All right. [00:14:22] Speaker 03: Thank you. [00:14:23] Speaker 00: Thank you. [00:14:25] Speaker 03: Thank you, Mr. Boland. [00:14:26] Speaker 03: We'll help from the government now. [00:14:27] Speaker 03: Mr. Hazel. [00:14:29] Speaker 04: Good morning. [00:14:31] Speaker 04: Excuse me. [00:14:32] Speaker 04: Good morning, your honors. [00:14:33] Speaker 04: May it please the court, Stephen Hazel for the government. [00:14:38] Speaker 04: This case is controlled by the test elaborated in Megapulse and Spectrum. [00:14:44] Speaker 04: That test does not look at whether a plaintiff can plead a breach of contract claim in claims court. [00:14:51] Speaker 04: The test looks at two factors, the source and the remedies requested in the district court complaint. [00:14:59] Speaker 04: And here, both of those factors point towards claims court jurisdiction and only claims court jurisdiction. [00:15:08] Speaker 03: So first- Just to be clear, the government thinks that this claim could be brought in the claims court. [00:15:15] Speaker 04: Yes, Your Honor. [00:15:16] Speaker 04: And in fact, Crowley is currently litigating in claims court. [00:15:21] Speaker 03: But not against GSA. [00:15:23] Speaker 04: It is litigating against GSA. [00:15:25] Speaker 03: Well, the second count, that's true, but the second count of the immediate complaint that was added, but that claim is mainly one that doesn't involve GSA as a contracting party. [00:15:35] Speaker 03: And my question is, this particular complaint, the government would say this complaint could be filed in the claims court and the government wouldn't then go in claims court and say this type of thing isn't within the claims court's jurisdiction. [00:15:47] Speaker 04: Your Honor, it's true that if Crowley filed this exact complaint in claims court, there would be no jurisdiction in claims court over an APA claim. [00:15:56] Speaker 04: That's the same as was the case in Spectrum, where there was no district court jurisdiction. [00:16:02] Speaker 04: It was an APA claim and the Spectrum plaintiff certainly couldn't have gone to claims court and brought that exact claim. [00:16:09] Speaker 04: They could have brought a different version of it, and in this case Crowley has actually done that. [00:16:16] Speaker 02: What different version? [00:16:17] Speaker 02: I'm not sure I understand. [00:16:18] Speaker 02: I mean, in the Spectrum case, they just worked through artful pleading to try to squeeze it into the scenario that you're talking about. [00:16:29] Speaker 02: This seems to be an entirely separate harm that the plaintiff is trying to address through this kind of claim. [00:16:38] Speaker 04: With respect, Your Honor, that's not how I see this complaint. [00:16:43] Speaker 04: In both cases, Crowley is asking the district court and the claims court to resolve the same contract interpretation issues. [00:16:53] Speaker 04: Is this a contract that calls for Crowley to act as a carrier or freight forwarder, which would implicate the Transportation Act, and whether the contract would [00:17:02] Speaker 04: otherwise allow GSA audits. [00:17:06] Speaker 04: So it's the same contract interpretation issues and the same relief that's available in both courts. [00:17:13] Speaker 04: If Crowley wins and claims court, in addition to getting the withheld contract payments back, [00:17:20] Speaker 04: The claims court also has authority under 1491A2 to issue an order directing GSA not to continue auditing these contracts. [00:17:32] Speaker 04: So the same contract interpretation issues in both courts. [00:17:36] Speaker 04: The government has never disputed jurisdiction in claims court. [00:17:40] Speaker 04: And in fact, we recently filed a motion for partial summary judgment in that court based on the [00:17:47] Speaker 04: whether there was actually a breach of contract here. [00:17:51] Speaker 04: So allowing both cases to go forward would create a substantial risk of inconsistent judgments. [00:18:00] Speaker 04: And in fact, a risk of inconsistent readings of this same contract. [00:18:07] Speaker 03: So the government says things at the second count that was added in the amended complaint in the claims court that that's okay to bring in claims court. [00:18:15] Speaker 04: Your Honor, you're referring to the Transportation Act count or the breach of contract? [00:18:20] Speaker 03: I think it was a transportation. [00:18:22] Speaker 03: I can't remember the particulars, but in the amended complaint in the claims court, there was a claim that was added against GSA. [00:18:31] Speaker 04: Yes, your honor. [00:18:32] Speaker 04: So I believe that is the transportation act account against GSA. [00:18:35] Speaker 04: And yes, we did not dispute jurisdiction over that count and we still do not. [00:18:41] Speaker 04: We've allowed the case to proceed on the merits. [00:18:45] Speaker 04: And so, you know, under this court's cases and Megapulse and Spectrum, you know, the question isn't whether Crowley could bring exactly the same claims in claims court. [00:18:57] Speaker 04: you know, we think it's more than enough that they can bring, you know, these transportation act and breach of contract claim against TransCom in claims court and get, you know, not just adequate, but essentially identical relief to the relief that they- Mr. Hazel, in those cases, I understood Megapulse and Spectrum to be answering the question of whether or not the claims were essentially contractual. [00:19:24] Speaker 02: And I heard Mr. Bowen [00:19:26] Speaker 02: say that in this case the claim against GSA is not essentially contractual indeed GSA is not in a contractual relationship with Mr. Crawley and his, in his company. [00:19:43] Speaker 02: I understand that you're suggesting that this case is like spectrum, but isn't that a crucial distinction that goes to the bottom line of those cases more so than the kinds of arguments that you're making about remedy or relief? [00:20:00] Speaker 04: No, Your Honor, I don't think so. [00:20:02] Speaker 04: Those cases don't ask whether there's a breach of contract claim. [00:20:06] Speaker 04: They just, they don't go into that inquiry at all. [00:20:10] Speaker 02: Isn't that necessary because they're about a statute that governs, that determines when there is jurisdiction in the claims court and the statutory provision at issue is about [00:20:24] Speaker 02: the claim being essentially contractual. [00:20:27] Speaker 02: So even if those cases don't put it in those terms, aren't we really talking about what the statute says belongs in the claims court because of its contractual nature? [00:20:38] Speaker 04: Your Honor, I think that's right. [00:20:40] Speaker 04: So just to go to the text of the Tucker Act a little bit, it covers claims founded on a contract with the United States. [00:20:48] Speaker 04: Here, it's undisputed that there's a contract with the United States. [00:20:51] Speaker 04: There's a contract between Crowley and Transcom. [00:20:53] Speaker 04: The question that's left is whether the claims here are founded on that government contract and megapulse and spectrum, give us this two part test the source and remedy test for discerning whether these claims are founded on on a contract. [00:21:10] Speaker 04: And maybe it would be helpful for me to just walk through this. [00:21:13] Speaker 03: It's not just, I mean, the contract isn't just up there in some diffuse way that's relevant to the claim. [00:21:19] Speaker 03: Torturous interference with contract is related to a contract, but nobody thinks torturous interference with contract is a contract claim. [00:21:25] Speaker 03: And the words of Spectrum, the way the court set up the inquiry in Spectrum is, both parties acknowledge resolution of this dispute turns upon whether Spectrum's claim is a contract dispute subject to the jurisdiction of the claims court under the Tucker Act. [00:21:40] Speaker 03: And then later on, the court says, the Spectrum's, the gravamen of its complaint is that the government has breached the contract by wrongfully withholding payments due. [00:21:50] Speaker 03: And it seems difficult to say that about these claims against GSA. [00:21:57] Speaker 04: No, Your Honor, I disagree. [00:21:58] Speaker 04: I think that's a fair description of Crowley's claims here. [00:22:04] Speaker 04: This doctrine is all about substance over form. [00:22:08] Speaker 04: And in this case, if this went back to district court, what the district court judge would need to do [00:22:14] Speaker 04: would be to interpret this contract, whether it allows GSA to perform audits or not. [00:22:21] Speaker 04: There's just no way the district court could get around those contract interpretation questions. [00:22:28] Speaker 02: While that might be true, Mr. Hazel, isn't that to the end of determining the kind of problem that Chief Judge Sherina Boston points out? [00:22:37] Speaker 02: In other words, tortious interference is a tort. [00:22:41] Speaker 02: that is related to contract and seems to be more of the thrust of what Mr. Crawley is claiming in this case, rather than an actual violation of a term in the contract. [00:22:55] Speaker 04: Your Honor, tortious interference isn't a helpful analogy here. [00:22:59] Speaker 04: That tort presupposes that there is an interference, that GSA isn't authorized to audit the contract. [00:23:06] Speaker 04: That's a question yet to be answered here. [00:23:11] Speaker 04: You know, our position is that the contract gives GSA authority to audit it in multiple ways. [00:23:17] Speaker 02: I understand in every case, in every case, the merits [00:23:21] Speaker 02: come later in our evaluation. [00:23:24] Speaker 02: You're saying, no, there is no interference. [00:23:26] Speaker 02: I'm asking you, what is the nature of the claim? [00:23:29] Speaker 02: What he's claiming is the kind of thing that would be analogous to tortious interference as opposed to claiming, true or not, that there's a contract violation, right? [00:23:43] Speaker 04: Your honor, I guess what I'm getting at with tortious interference is that the analogy assumes away the contract issues. [00:23:50] Speaker 04: I'm not suggesting that this court would resolve those issues in this appeal, but I think it's important for the court to note that they are part of the case and the district court would need to resolve them. [00:24:03] Speaker 02: That's the case in every tortious interference case. [00:24:06] Speaker 02: I mean, in every tortious interference with a contract, you're going to have these same issues. [00:24:12] Speaker 02: What does the contract say? [00:24:13] Speaker 02: Did the person really intervene? [00:24:15] Speaker 02: And yet somehow in jurisprudence, those kinds of claims are considered to be separate and apart from contract claims. [00:24:24] Speaker 02: And to the extent we have to have a contract claim in this case, [00:24:28] Speaker 02: I guess I don't understand why you're putting this case in the contract claim bucket, as opposed to one that is more analogous to the kinds of tortuous interference that don't give rise to Tucker Act jurisdiction. [00:24:43] Speaker 04: Your honor, the reason we're putting it in the contract bucket is the same reason that the district court did, because the ultimate source of the asserted rights is this contract with transcom. [00:24:54] Speaker 04: Without it, there would just be no claims here at all. [00:24:57] Speaker 04: The remedy that's been requested here. [00:25:01] Speaker 04: is essentially a remedy that will result in the return of withheld contract payments. [00:25:07] Speaker 04: So that's the megapulse and spectrum test. [00:25:10] Speaker 04: And that's why we believe this claim is essentially a contractual. [00:25:15] Speaker 03: Can I just make a clarification on one matter, which is, let's just assume that we think that in order for Tucker Act jurisdiction to be exclusive, [00:25:25] Speaker 03: that there has to be a version of the claim that could be brought in the claims court under the Tucker Act. [00:25:33] Speaker 03: And then to understand what the government's argument is as to what is the claim that would be brought within the claims court's jurisdiction under the Tucker Act, are you relying on the Transportation Act? [00:25:46] Speaker 03: Because I'm talking about a claim against GSA. [00:25:48] Speaker 03: And so it wouldn't be a breach of contract claim as I understand it. [00:25:52] Speaker 03: which would be Tucker Act jurisdiction, but that's not the kind of claim that we're talking about here. [00:25:55] Speaker 03: If we have to envision the claim that would be brought within the Tucker Act jurisdiction in the claims court, you're saying it's a Transportation Act claim against GSA? [00:26:05] Speaker 04: That's right, Your Honor. [00:26:06] Speaker 04: So both a breach of contract claim against Transcom [00:26:10] Speaker 04: and a Transportation Act claim against GSA. [00:26:14] Speaker 04: Those are the two that Crowley has brought. [00:26:16] Speaker 04: Both of those fall within the tariff. [00:26:18] Speaker 03: Right, but I'm not talking about Transcraft. [00:26:19] Speaker 03: I'm just talking about GSA because the only claim that we have before us is one against GSA. [00:26:25] Speaker 03: And so as to that, the variant that would be brought in the claims court that would then occasion the notion that that jurisdiction is exclusive, ergo, [00:26:34] Speaker 03: The district court here doesn't have jurisdiction. [00:26:36] Speaker 03: It would be not a breach of contract claim against GSA because GSA is not a contracting party. [00:26:40] Speaker 03: It would be the Transportation Act claim against GSA. [00:26:45] Speaker 04: That's right, Your Honor. [00:26:46] Speaker 04: So that's, you know, that's a claim that is already proceeding and that provides all the relief that Crowley is seeking here. [00:26:54] Speaker 04: And I'll just note very briefly that this court has always focused its analysis on the essence of the claim in district court and not on exactly how the claim might be translated into claims court or federal circuit jurisdiction. [00:27:12] Speaker 04: So, you know, our view is that that's the focus of the analysis here, not how it would translate. [00:27:18] Speaker 02: Mr. Hazel, I see that you're out of time, but I just wanted to understand the sort of other line of cases and how they fit into your argument. [00:27:28] Speaker 02: So are you, by focusing pretty much exclusively on megapulse and spectrum, are you conceding that the claims that have been brought against GSA in this case are not seeking monetary relief? [00:27:42] Speaker 02: Are you sort of giving up that part of the argument? [00:27:46] Speaker 04: No, Your Honor, absolutely not. [00:27:48] Speaker 04: In the context of this case, MegaPulse's remedy prong and this line of cases, this sort of essentially monetary recovery, those two inquiries are either coextensive or very, very similar. [00:28:04] Speaker 04: In both cases, we're asking whether this is essentially a claim that's asking for the return [00:28:10] Speaker 04: of these withheld contract payments. [00:28:13] Speaker 04: If that's true, the remedy is essentially contractual, and it's also an essentially monetary recovery. [00:28:20] Speaker 04: So we just see that second mega-pulse prong and the sort of Kidwell test as co-extensive in the contract. [00:28:28] Speaker 02: So you're rejecting Mr. Boland's, this is a prospective, we have thousands of interventions by GSA requiring audits and responses to which we have [00:28:40] Speaker 02: had to devote resources and we want the court to tell them to stop doing that. [00:28:45] Speaker 02: You don't see that as something separate and apart from an argument about allowing them to get the money that has been denied them in the course of this auditing procedure. [00:28:58] Speaker 04: Your honor, if we look at this prospectively, the relief that Crowley has requested will result in full payment of these payments that they believe they're owed under the contract. [00:29:14] Speaker 02: So, prospectively, they will continue to... What about the cost of overtime of the people who have to respond to the audits? [00:29:24] Speaker 02: That's not recovered in the amount [00:29:28] Speaker 02: even if they win with respect to the audits themselves, right? [00:29:33] Speaker 04: Your honor, all government contracts have administrative and monitoring costs. [00:29:38] Speaker 04: It just can't be the case that going to district court and requesting a declaratory relief that would give you those payments back just by suggesting that there may be sort of accompanying auditing and monitoring costs. [00:29:53] Speaker 04: And here those costs are far lower than the benefit of the withheld contract payments. [00:29:59] Speaker 04: It just can't be the case that that's enough to get a contractor out of claims court and to be able to proceed in both in parallel litigation in both claims court and district court. [00:30:12] Speaker 02: And you see no additional administrative costs arising out of the conflict that [00:30:20] Speaker 02: Mr. Crowley and his company is facing between two different government agencies coming up with two different results on each one of these transactions. [00:30:31] Speaker 04: Thank you for asking. [00:30:33] Speaker 04: I wanted to clarify that point. [00:30:35] Speaker 04: There's no conflict here. [00:30:37] Speaker 04: The contracting officer's final decision that Crowley references, that's a nullity at this point. [00:30:44] Speaker 04: Under the Contract Disputes Act, when a party challenges a contracting officer's decision, it's null and everyone starts from a blank slate. [00:30:54] Speaker 04: That's 7103G of the Contract Disputes Act. [00:30:59] Speaker 04: And we discuss both that statute and the relevant Federal Circuit authorities on page 25 of our brief. [00:31:06] Speaker 04: So that's a very important point. [00:31:08] Speaker 02: I'm sorry. [00:31:10] Speaker 02: I just want to be clear. [00:31:10] Speaker 02: When a contractor disputes, but in this case, the contractor agrees, the dispute is coming from GSA. [00:31:17] Speaker 02: Does that matter? [00:31:19] Speaker 04: No, Your Honor, 7103G makes clear the decision is only binding unless there's a challenge in claims court. [00:31:28] Speaker 04: And Crowley chose to challenge this decision in claims court several months before it initiated this district court litigation. [00:31:37] Speaker 04: That's 7103G and the relevant federal circuit decision is Willner and cited again on page 25 of our brief. [00:31:48] Speaker 03: Okay. [00:31:49] Speaker 03: Thank you, Mr. Hazel. [00:31:49] Speaker 03: Let me make sure my colleagues don't have additional questions for you. [00:31:53] Speaker 03: No. [00:31:54] Speaker 03: Mr. Balland, we'll give you two minutes back for rebuttal. [00:31:58] Speaker 00: Okay. [00:31:58] Speaker 00: Thank you, Your Honor. [00:32:00] Speaker 00: Just briefly, if I could just touch on a few points here. [00:32:03] Speaker 00: On that last point from Mr. Hazel, we disagree. [00:32:06] Speaker 00: We did not initiate an action on TransCom's interpretation of the contract. [00:32:10] Speaker 00: and the contracting officer's determination that GSA's audits are not valid. [00:32:15] Speaker 00: The action we initiated is solely with respect to the part of the final decision that said that TransCom can't pay the money because GSA took it. [00:32:23] Speaker 00: So that's the only dispute that we have under the CDA. [00:32:27] Speaker 00: And it would be illogical to say that in order for us to, for Crowley to lose the favorable final and conclusive decisions of the contracting officer as to the interpretation of the contract merely because we have one part of the decision that needs to be, where there's disagreement. [00:32:48] Speaker 00: So we disagree on that point. [00:32:52] Speaker 00: Briefly, Your Honor, I mentioned Section 14705. [00:32:55] Speaker 00: It's our alternative count in our claims court case. [00:33:01] Speaker 00: Just to be clear, that type of action, which we brought merely as an alternative, that is limited to the recovery of charges. [00:33:09] Speaker 00: That does not allow us to sue GSA for violating the CBA's finality clause. [00:33:16] Speaker 00: We also don't agree that that act applies to us. [00:33:20] Speaker 00: We're not a common carrier. [00:33:22] Speaker 00: We're not acting as a freight forwarder as alleged in our complaint. [00:33:25] Speaker 00: And ultimately, this is a CDA contract. [00:33:29] Speaker 00: So 14705 is not available to us. [00:33:32] Speaker 00: The CDA is our remedy in claims court for money, not 14705. [00:33:37] Speaker 00: The Federal Circuit's decision in Dalton has made that clear. [00:33:40] Speaker 00: The same contract cannot be subject to the CDA and the Transportation Act at the same time. [00:33:47] Speaker 00: Um, but you brought the claim, right? [00:33:51] Speaker 00: In the claims court? [00:33:52] Speaker 00: Yeah, count two. [00:33:53] Speaker 00: Yes. [00:33:54] Speaker 00: Yes, we, we, we added that to our, to our, uh, complaint as, as an alternative. [00:33:58] Speaker 00: And we made clear though that we're doing it only because of the Transportation Act three or statute of limitations. [00:34:03] Speaker 00: Um, and just to preserve it as an alternative, but we disagree that it, that it would apply. [00:34:08] Speaker 02: Mr. Boland, Mr. Hazel suggested that you could get all of the relief you're seeking in one form or another in the claims court. [00:34:17] Speaker 02: Do you agree with that or not? [00:34:21] Speaker 00: No, no, we disagree. [00:34:23] Speaker 00: I mean, the ultimate remedy in the claims court would be money, eventually. [00:34:32] Speaker 00: But money that would already be taken, we would be deprived of our right today, our present right, to the finality of the transcomm's, the contracting officer's interpretation of the contract. [00:34:45] Speaker 02: And your hazel says that as a auxiliary power that the claims court could enjoy GSA from continuing to operate in this way. [00:34:58] Speaker 02: Is he wrong about that. [00:35:00] Speaker 00: We believe that we believe the mission has was wrong, the court does not have. [00:35:05] Speaker 00: the ability to tell GSA what to do, because that claim that we would have would be under the CDA. [00:35:14] Speaker 00: Our claim is against Transcom. [00:35:16] Speaker 00: I mean, ultimately, we think that Transcom has allowed GSA to take the money. [00:35:20] Speaker 00: So Transcom is ultimately responsible for making sure that we're paid under the contract. [00:35:26] Speaker 00: But the court's judgment, you know, judgment in the claims court would be against Transcom. [00:35:34] Speaker 00: And I know the government has mentioned the limited remand power of the court. [00:35:40] Speaker 00: But again, a remand does not direct an outcome. [00:35:44] Speaker 00: It sort of sends something back to an agency to go look at something again. [00:35:47] Speaker 00: But we do not believe that that would provide effective relief. [00:35:52] Speaker 00: I'd also note that whether there's an adequate remedy is also not really a jurisdictional question. [00:35:57] Speaker 00: It's a Section 704 issue, which is not jurisdictional. [00:36:04] Speaker 03: Okay. [00:36:05] Speaker 03: Thank you, counsel. [00:36:06] Speaker 03: Thank you to both counsel. [00:36:07] Speaker 03: We'll take this case under submission.