Palmer v. Barram

• Decision Date: 03 August 1999
• Citation: 184 F.3d 1373
• Parties: (Fed. Cir. 1999) WAYNE T. PALMER, Appellant, v. David J. Barram, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, Appellee. 97-1539 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1373

184 F.3d 1373 (Fed. Cir. 1999)

WAYNE T. PALMER, Appellant, v. David J. Barram, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, Appellee.

97-1539

United States Court of Appeals for the Federal Circuit

DECIDED: August 3, 1999

Appealed from: General Services Administration Board of Contract Appeals

Wayne T. Palmer, pro se, of Bailey, Colorado.

Katherine M. Kelly, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, and Kirk Manhardt, Assistant Director.

L. James D'Agostino, Reed Smith Shaw & McClay, LLP, of McLean Virginia, argued for amicus curiae The Federal Circuit Bar Association. With him on the brief were Giovanna M. Cinelli, Andrew J. Hungerman, IV, and Jason P. Matechak. Of counsel on the brief was George E. Hutchinson and Kenneth J. Nunnenkamp, The Federal Circuit Bar Association, of Washington, DC.

Before MICHEL and GAJARSA, Circuit Judges, and CUDAHY,^* Senior Circuit Judge.

MICHEL, Circuit Judge.

Wayne T. Palmer appeals from the decision of the General Services Administration Board of Contract Appeals (the "GSBCA"), denying Mr. Palmer's claim, which he elected to pursue under the statutory small claims procedure, for breach of a vehicle sale contract. See Palmer v. General Servs. Admin., No. 14063 (GSBCA May 12, 1997). On appeal to us, following special briefing on jurisdiction and regular briefing, repeatedly deferred, on the merits and appointment of an amicus curiae and filing of an amicus curiae brief, the appeal was finally submitted for our decision after oral argument on June 8, 1999.¹ The pertinent section of the Contract Disputes Act of 1978 (the "CDA"), 41 U.S.C. § 608(d) (1994), bars an appeal from a decision of any board of contract appeals where the claimant has elected the small claims procedure, except in cases of "fraud." We hold that as used in that subsection "fraud" refers to the board proceeding, not the formation of the underlying contract. Because Mr. Palmer has not alleged any such fraud, we must dismiss his appeal for lack of jurisdiction.

BACKGROUND

A.

On August 1, 1996, Mr. Palmer attended a vehicle auction held by the General Services Administration (the "GSA") Fleet Management Center in Denver, Colorado. At the auction, Mr. Palmer signed a "bidder registration card" agreeing to a number of special terms and conditions of sales at the auction, set forth in a form described below, as well as general terms and conditions in a general form that was referenced in the special form. Before bidding, Mr. Palmer requested from an auction representative the maintenance record of a 1992 Ford Bronco, but was told that he could not be provided with that document. Despite not being able to view the maintenance record, Mr. Palmer bid on the Bronco for $11,000. His was the highest bid and it was accepted. After placing his winning bid, Mr. Palmer signed a "bid card" similar to the bidder registration card, which stated in capital letters, "Subject to the general sales terms and conditions (Standard Form 114C) and any special terms and conditions applicable to this sale, I, the undersigned, offer and agree to purchase the item designated above at the price indicated above."

During the auction, Mr. Palmer also received the "Special Terms and Conditions of Sale" form (the "Form"). At the top of the Form was printed, "IMPORTANT - Please read before bidding," under which was written, "CONDITION OF PROPERTY IS NOT WARRANTED." The Form continued:

Description Warranty: If a misdescription is determined before removal of the property, the Government will keep the property and refund any money paid. If a misdescription is determined after removal, the Government will refund any money paid if the purchaser takes the property at his/her own expense to a location specified by the Contracting Officer. No refund will be made unless the purchaser submits a written notice to the contracting officer within 15 calendar days of the date of removal that the property is misdescribed and maintains the property in the same condition as when removed. . . . This warranty is in place of all other guarantees and warranties, expressed or implied. The Government does not warrant the merchantability of the property or its fitness for any use or purpose. . . .

Deficiencies, when known, have been indicated in the item description. However, absence of any indicated deficiencies cannot mean the item is without deficiencies. Bidders are cautioned to inspect before bidding.

(emphasis added).

Mr. Palmer took possession of the vehicle and drove it without difficulty for three months. Then, in November 1996, Mr. Palmer drove the Bronco to Albuquerque, New Mexico. During the trip the Bronco experienced transmission problems. The Bronco was towed to a Ford dealership where Mr. Palmer was informed that the entire transmission needed replacement. The dealership replaced the transmission for $1,955.06, including parts and labor. The Bronco's odometer read 64,715 miles when Mr. Palmer brought the vehicle into the Ford dealership, indicating that he had driven the vehicle 9,505 miles since he purchased it at the auction.

B.

Mr. Palmer submitted a claim to a GSA contracting officer (the "CO") seeking $1,348.82 plus tax, the cost of the new transmission, exclusive of labor. Mr Palmer received a letter, dated December 6, 1996, from the CO, denying his claim. The CO reasoned that under the express terms and conditions of the sale, as stated in both the bid card and the registration card, which Mr. Palmer signed, and further detailed in the Form, the Bronco came with a warranty of description, but no warranty of condition, and thus, no guarantee of the fitness of the Bronco's transmission. Furthermore, Mr. Palmer failed to submit in writing a claim under the description warranty within fifteen days of the sale as required by the express terms of the warranty.

In a letter dated December 10, 1996, Mr. Palmer responded to the denial of his claim, stating that the issue was one of "good faith," not the terms and conditions of a warranty. The CO again denied Mr. Palmer's claim in a letter dated December 24, 1996.

Mr. Palmer appealed the decision to the GSBCA on December 27, 1996. In a letter dated January 22, 1997, he designated his notice of appeal as his complaint and requested that his case proceed pursuant to the statutory small claims procedure. On April 29, 1997, the GSBCA held a conference with the parties and determined that the record was sufficient to decide the case without further submissions or a hearing. Accordingly, the GSBCA closed Mr. Palmer's appeal record.

On May 12, 1997, the GSBCA issued its decision denying Mr. Palmer's claim. On June 5, 1997, Mr. Palmer moved for reconsideration of the decision. The GSBCA denied his motion on July 31, 1997, stating that he had provided no new evidence to support his claim, and reaffirming its May 12 decision.

C.

Mr. Palmer timely filed an appeal with this court, seeking $1,955.06, representing the cost of both parts and labor for the replacement of the transmission.² In his brief, he asserted that the GSBCA failed to consider as evidence of fraud his allegations that the GSA sold the Bronco despite knowing that it had been in several accidents, had a faulty transmission, and had not been maintained properly.

A letter was sent on September 19, 1997 by this court, sua sponte, requesting that both parties file submissions addressing why Mr. Palmer's appeal should not be dismissed for lack of jurisdiction, because decisions under the GSBCA's small claims procedure are not appealable to this court "except in cases of fraud." 41 U.S.C. § 608(d).

On March 6, 1998, this court issued an order inviting amicus curiae briefs to respond to the jurisdictional issue within thirty days. The Federal Circuit Bar Association made a motion to file an amicus curiae brief and requested an extension of time to file its brief. The motion was granted, allowing a thirty day extension. The amicus curiae brief was filed on April 30, 1998. On September 24, 1998, this court ordered Mr. Palmer to file a brief within 30 days. After not receiving a brief from Mr. Palmer, on December 1, 1998, this court issued an order for Mr. Palmer to respond to the September 1998 order and file an informal brief within thirty days of the date of filing the order. He timely filed his informal brief on December 11, 1998. The appeal is now being decided, nearly two years after it was filed in this court on September 9, 1997.

DISCUSSION

This court's jurisdiction, if any, over this appeal can only be predicated on our statutory authority over appeals from decisions of contract boards of appeal. See 28 U.S.C. § 1295(a)(10) (1994); 41 U.S.C. § 607(g)(1)(A) (1994). We have repeatedly questioned whether we have such jurisdiction as this appeal has progressed. Although the government did not move to dismiss, it is always the duty of the court "to determine its jurisdiction and to satisfy itself that an appeal is properly before it." Wang Lab., Inc. v. Applied Computer Science, Inc., 958 F.2d 355, 357 (Fed. Cir. 1992). The question of subject matter jurisdiction, therefore, is one that may be raised sua sponte by the court, as it was here, and our jurisdiction to address and decide it is inherent.

Whether we have jurisdiction to adjudicate a particular appeal is a question of law. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996). We address it on the record before us mindful that the burden of persuasion falls on the appellant to establish that we indeed possess the jurisdiction he seeks to invoke.

I.

On appeal, Mr. Palmer argues that this court has jurisdiction because, under the small claims procedure, appeals to us are allowed "in cases of fraud," and he alleges that the GSA committed "fraud" in inducing him to contract...