996 F.2d 1177 (Fed. Cir. 1993), 92-5104, M.A. Mortenson Co. v. United States

Docket Nº:92-5104.
Citation:996 F.2d 1177
Party Name:M.A. MORTENSON COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
Case Date:June 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1177

996 F.2d 1177 (Fed. Cir. 1993)

M.A. MORTENSON COMPANY, Plaintiff-Appellee,


The UNITED STATES, Defendant-Appellant.

No. 92-5104.

United States Court of Appeals, Federal Circuit

June 9, 1993

Page 1178

Ronald A. Schechter, Jones, Day, Reavis & Pogue, Washington, DC, argued for plaintiff-appellee. With him on the brief were Joseph D. West and Rosemary Maxwell.

Shalom Brilliant, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellant. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director.

Before RICH, MICHEL and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

The United States appeals from the March 30, 1992 judgment of the United States Claims Court 1 awarding attorney fees and costs against the United States as a sanction for its failure to comply with several discovery orders. Because the United States has waived its sovereign immunity in the Claims Court with respect to this sanction, we affirm.


The single issue raised in this appeal is whether the United States, as defendant in every suit brought in the Claims Court, has waived its sovereign immunity in that court to an award of monetary sanctions pursuant to the court's rules for abusing its discovery orders.

M.A. Mortenson Company filed suit on behalf of itself and several subcontractors in the Claims Court against the Veterans Administration, claiming additional costs of over

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twelve million dollars incurred in constructing a hospital in Seattle, Washington. The Claims Court issued an order governing pretrial matters, including discovery, on June 22, 1987. Pursuant to this order, Mortenson served discovery requests on the government in August, 1987. After the government failed to respond thereto, Mortenson filed a motion to compel discovery, and requested attorney fees and costs incurred in the discovery dispute. On January 25, 1988 after a hearing, the Claims Court granted Mortenson's motion to compel, adopted a detailed discovery schedule and deferred ruling on the motion for attorney fees and costs.

The Claims Court again faced the issue of discovery when it became aware that the government had not complied with the discovery timetable set in the court's January 25 order. In response to this information, on March 15, 1988, the court ordered the government "to provide ... full and complete responses to Mortenson's discovery requests on or before April 6, 1988." M.A. Mortenson Co. v. United States, Nos. 815-86C, 178-87C, slip op. at 1 (Cl.Ct. Mar. 15, 1988) (order directing compliance with discovery schedule). The court also announced its intention to consider "appropriate financial and evidentiary discovery sanctions should [the government] fail, without adequate reason, to comply with the court's orders." Id. at 2.

After a hearing to determine compliance with its orders, the Claims Court found that the government had conceded that three of the four items requested by Mortenson had not been produced. M.A. Mortenson Co. v. United States, Nos. 815-86C, 178-87C, slip op. at 1 (Cl.Ct. Apr. 14, 1988) (order granting sanctions). As to the fourth category, the court found the government's responses "incomplete and confusing," "facially contradict[ory]" when compared with the government's admissions and surprisingly brief considering the government's earlier representation that additional time was required because the interrogatories required "a very lengthy and specific type of answer." Id. at 8-9. As a consequence of the government's failure to comply with the discovery orders, the Claims Court (i) assessed certain evidentiary sanctions under Rule 37(b)(2) of the Rules of the United States Claims Court (RUSCC), and (ii) directed the government to pay attorney fees and costs associated with the discovery dispute pursuant to RUSCC 37(a)(4). Id. at 10. The amount of the sanction was ultimately set at $21,983, representing the expenses "related to the motion to compel in that they would not have been incurred but for [the government's] lack of diligence in responding to discovery requests and its failure to obey the court's discovery orders." M.A. Mortenson Co. v. United States, Nos. 815-86C, 178-87C, slip op. at 1-2 (Cl.Ct. June 15, 1988) (order establishing appropriate sanction amount).

The government stated that the sanction would not be paid unless the amount was entered as a partial judgment against the United States. Upon Mortenson's subsequent motion to have the court enter such a partial judgment, the government raised the issue of sovereign immunity for the first time. The Claims Court rejected the government's position on sovereign immunity in its September 12, 1988 decision, and granted Mortenson's motion. M.A. Mortenson Co. v. United States, 15 Cl.Ct. 362 (1988) (order granting partial judgment). First, the court found that sanctions for abusing discovery may be assessed under RUSCC 37 regardless of a lack of any independent statutory or common law basis on which to rely. Id. at 363-64. Second, the court determined that Congress, via the Equal Access to Justice Act, had evidenced its intent to place the United States on an equal footing with other parties with respect to an award of attorney fees and costs under Rule 37 of the Federal Rules of Civil Procedure (FRCP), and that the legislative history of the Equal Access to Justice Act and the accompanying repeal of Rule 37(f) "strongly militate against creating a different result under the RUSCC [than under Fed.R.Civ.P. 37]." Id. at 365.

The United States' immediate appeal from the entry of partial judgment was dismissed as interlocutory by this court pending entry of final judgment in the case. M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed.Cir.1989). Thereafter, all remaining claims between the parties were settled, and final judgment for $21,983 was entered on

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March 30, 1992. The United States timely appealed the judgment to this court.


Whether the Claims Court has jurisdiction to entertain certain motions is an issue we review de novo. Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992); Placeway Constr. Corp. v. United States, 920 F.2d 903, 906 (Fed.Cir.1990). This particular review necessarily involves statutory interpretation, which we likewise review de novo. Commercial Energies, Inc. v. United States, 929 F.2d 682, 684 (Fed.Cir.1991); Pasteur v. United States, 814 F.2d 624, 626 (Fed.Cir.1987). Before this court, the government again raises its defense of sovereign immunity, which we address in detail.

Under the doctrine of sovereign immunity, the federal government, as this nation's "sovereign," is immune to an award of money damages, except to the extent that the government has explicitly waived such immunity. Zumerling v. Marsh, 783 F.2d...

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