Fireman's Fund Ins. Co. v. England
| Decision Date | 27 November 2002 |
| Docket Number | No. 00-1420.,00-1420. |
| Citation | 313 F.3d 1344 |
| Parties | FIREMAN'S FUND INSURANCE COMPANY, Appellant, v. Gordon R. ENGLAND, Secretary of the Navy, Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Vincent J. Zichello, Zichello & McIntyre, LLP, of New York, NY, for appellant.
Elizabeth G. Candler, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for appellee. With her on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Donald E. Kinner, Assistant Director.
Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit Judge.
After a contractor defaulted on a government construction contract, the surety entered into a takeover agreement and completed the work. The government assessed liquidated damages against the surety for delays in doing its work. The contracting officer rejected the surety's challenges to the liquidated damages, and the surety appealed that action to the Board of Contract Appeals ("Board"). The Board dismissed the portion of the claims relating to delays before the takeover agreement, and in this appeal the surety challenges that ruling. We (1) hold that the Board's action was a final decision that we have jurisdiction to review, and (2) affirm the Board's dismissal of the pretakeover claims.
The United States Navy and Summit General Contracting Corp. ("Summit") entered into a contract in 1988 for Summit to construct a government building. Fireman's Fund Insurance Company ("Fireman's Fund") was the surety and provided performance and payment bonds. Summit and Fireman's Fund executed a "General Indemnity Agreement" under which, in case of a breach of the construction contract, Summit assigned to Fireman's Fund "all of their rights under the contracts ... including their right, title and interest in and to ... all actions, causes of actions, claims and demands whatsoever which the Principal may have in anyway arising out of or relating to such Bond, or contract covered by such Bond."
The government terminated the contract for default on January 16, 1990, after Summit failed to complete the contract by the scheduled date. The government and Fireman's Fund entered into a takeover agreement on April 17, 1990, under which Fireman's Fund agreed to complete the contract. Summit was not a party to that contract, which did not mention the General Indemnity Agreement or its assignment of claims to Fireman's Fund.
Fireman's Fund submitted a claim to the contracting officer seeking an "equitable adjustment and/or rescission of assessed liquidated damages." Its claims all related to delays in performance that the government allegedly caused, both before and after the takeover agreement. The contracting officer denied all the claims, and Fireman's Fund appealed to the Board.
On the government's motion, the Board dismissed the claims that arose before the takeover agreement. The Board held that Fireman's Fund was not a "contractor" under the Contract Disputes Act who could invoke that Act to assert those claims, and that the Board thus lacked jurisdiction over those claims. The Board also ruled that Summit's assignment of its claims to Fireman's Fund under the General Indemnity Agreement was barred by the Anti-Assignment Act. Finally, the Board rejected Fireman's Fund's claim of equitable subrogation, determining the doctrine was inapplicable.
After the Board denied Fireman's Fund's motion for reconsideration on May 2, 2000, Fireman's Fund appealed to this court. Thereafter, on March 5, 2001, the Board dismissed the remaining appeal (which involved delays after the takeover agreement) without prejudice, but provided that the dismissal would be with prejudice, unless within three years either party sought to reinstate the appeal or the court itself did so.
In reviewing decisions of trial tribunals, federal appellate courts treat as "final decisions" reviewable under 28 U.S.C. § 1291 only those decisions that fully dispose of all the claims in the case. Teller Envtl. Sys., Inc. v. United States, 802 F.2d 1385, 1388 (Fed.Cir.1986). A trial court decision that "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties" is not final unless the trial court certifies it as such. FED.R.CIV.P. 54(b). As the standard frequently is stated: "[f]inality classically has required that the appealed order end the litigation on the merits and leave nothing for the court to do but execute judgment." Kinetic Builder's Inc. v. Peters, 226 F.3d 1307, 1312 (Fed.Cir.2000) (citations omitted). Under this standard, the Board's decision on appeal in this case would not be final because it did not dispose of all the claims pending before the tribunal.
"Although this classical finality requirement is strictly imposed on district court decisions, it is not imposed with exact congruence on Board decisions." Id. at 1313 (citations omitted). In determining the "finality" of Board decisions that completely dispose of less than all the claims, we have focused not on whether the decision disposed of the entire "case," but on its impact on the particular claims and their relationship to the Board's administrative proceeding. "[F]inality of a Board decision can be found `where the process of the Board decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and where rights or obligations have been determined or legal consequences will flow from the agency action.'" Id. (quoting Dewey Elecs. Corp. v. United States, 803 F.2d 650, 654 (Fed.Cir.1986)).
Consistent with this analysis, we have held that a Board decision adjudicating the merits of nine claims but remanding five of them (upon which the contractor prevailed) to the contracting officer to determine damages was final with respect to the four claims that the Board decided against the contractor. Dewey Elecs., 803 F.2d at 653. We "h[e]ld that the Board made a final decision on the four claims that are the subject of this appeal and that appeal should not be deferred pending resolution of quantum for the five claims remanded." Id. This court refused to make "the finality concept of district court litigation, requiring both liability and damages to be resolved before an appeal ... applicable to agency board proceedings." Id. at 654. It stated that:
the Board here, in disposing of all of the entitlement questions, fully addressed all of the decisions (constructively made) of the contracting officer then on appeal to the Board. In the words of the Supreme Court, "there was no possible disruption of the administrative process; there was nothing else for the [Board] to do."
Id. at 658 (quoting Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)).
Our decisions have treated as final (and hence appealable) Board decisions in various situations that have decided less than all the issues before the Board. See, e.g., Kinetic Builder's, 226 F.3d 1307.
Under these principles, the Board's decision dismissing those portions of the claims that arose prior to the takeover agreement is a "final decision" under 28 U.S.C. § 1295(a)(1)(10) for purposes of appeal. Since the Board dismissed those claims without reaching their merits, all we need decide in this appeal is whether the Board had jurisdiction to consider them. That is a narrow issue and not difficult to resolve. There is no reason to believe that judicial review of that issue at this stage of the proceedings will "disrupt the orderly process of adjudication and where rights or obligations have been determined or legal consequences will flow from the agency action." Kinetic Builder's, 226 F.3d at 1313 (internal citations omitted).
Our conclusion that the Board's decision is final for purposes of appeal also is supported by the Board's subsequent dismissal of the balance of the case. There are now no claims in this case pending before the Board. Although the Board's subsequent dismissal was without prejudice to refiling those dismissed claims within three years, there is no indication at present whether or not Fireman's Fund will do so. The likelihood of such filing is conjectural. Such speculation would be an inappropriate basis for determining our jurisdiction.
In cases on appeal from a district court to a court of appeals under the analogous provision of 28 U.S.C. § 1291 (2000), which limits appeals to "final" decisions of district courts, our sister circuits have treated as final orders disposing of only part of a case, where the district court subsequently dismissed the rest of it. See, e.g., Anderson v. Allstate Ins. Co., 630 F.2d 677 (9th Cir.1980); Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). In Anderson the court entertained an appeal from a district court order dismissing the action as to only some of the defendants, where the district court subsequently disposed of the remainder of the case. It quoted with approval the following statement from Jetco, where the district court had followed a similar course:
[T]hese two orders, considered together, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. Mindful of the Supreme Court's command that practical, not technical, considerations are to govern the application of principles of finality, we decline appellee's invitation to exalt form over substance by dismissing this appeal.
630 F.2d at 681 (quoting Jetco, 473 F.2d at 1231) (internal citations omitted).
The Ninth Circuit in Anderson "f[ou]nd this analysis persuasive." Id. So do we.
In dismissing the pre-takeover agreement claims, the Board held (1) that the Contract Disputes Act, 41 U.S.C. §§...
To continue reading
Request your trial
-
Council for Tribal Emp't Rights v. United States, 12-326C
...provisions." Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009) (emphasis added) (citing Fireman's Fund Ins. Co. v. England, 313 F.3d 1344, 1350-52 (Fed. Cir. 2002); Admiralty Constr., Inc. by Nat. Am. Ins. Co. v. Dalton, 156 F.3d 1217, 1220-21 (Fed. Cir. 1998); Erickson Air Cra......
-
Ins. Co. of the West v. United States
...745, 746 (1983)), does not recognize an equitable subrogee as being a "contractor" for purposes of the CDA. See Fireman's Fund v. England, 313 F.3d 1344, 1351 (Fed. Cir. 2002) ("Even if Fireman's Fund were equitably subrogated to any claim that [the contractor] may have had against the gove......
-
Ins. Co. of the West v. United States, 09-509 C
...745, 746 (1983)), does not recognize an equitable subrogee as being a "contractor" for purposes of the CDA. See Fireman's Fund v. England, 313 F.3d 1344, 1351 (Fed. Cir. 2002) ("Even if Fireman's Fund were equitably subrogated to any claim that [the contractor] may have had against the gove......
-
Fid. & Guaranty Ins. Underwriters, Inc. v. United States
...Cas. Co. v. United States, 654 F.3d 1305, 1312–13 (Fed.Cir.2011) ; Nat'l Am. Ins. Co., 498 F.3d at 1307 ; Fireman's Fund Ins. v. England, 313 F.3d 1344, 1351–52 (Fed.Cir.2002) ). In this case, by settling the tort claim of Mr. Wilson, USF & G, if anything, became the equitable subrogee of G......
-
Escrowed Payments May Leave Federal Subcontractors High And Dry
...properly recognized under an assignment of claims pursuant to Subpart 32.8, is not permitted."). 5 Fireman's Fund Ins. Co. v. Eng., 313 F.3d 1344, 1350 (Fed. Cir. 2002) ("A 'financing institution' supplies financing. That is its business. It lends money or provides 6 FAR § 32.804(c). The co......