ASBCA Says Summary Judgment Is the “Put-Up or Shut-Up” Phase of Litigation. How Did the Government End Up on the Wrong Side of this Disjunctive Proposition?

The contractor moved for summary judgment on its claim. The ASBCA found the government’s rebuttal evidence—conclusory statements from counsel, speculation—was not enough to preclude judgment for the contractor.

Appeals of U.S. Bank National Association, ASBCA Nos. 62986, 63022

• The Dispute – DoD contracted with U.S. Bank to pay for agency travel. U.S. Bank paid travel expenses to commercial carriers. U.S. Bank then invoiced DoD to get reimbursed. But at some point, U.S. Bank found a $1.5 million discrepancy between the amount it had paid and the amount DoD reimbursed. U.S. Bank filed a claim for this discrepancy.
• Government’s Motion to Dismiss – U.S. Bank had provided payment services under multiple contracts for over 20 years. The government moved to dismiss, arguing the discrepancy was related to a prior contract, not the most recent contract under which U.S. Bank filed its claim. U.S. Bank, however, had shown it had applied a FIFO accounting convention such that payments made under the current contract were going to the past discrepancy. This created an issue of fact that precluded the government’s motion to dismiss.
• Contractor’s Motion for Summary Judgment – U.S. Bank moved for summary judgment on its claim. The board reasoned the claim hinged on whether DoD invoices could be linked to specific payments. U.S. Bank claimed it was not possible. DoD clamed a link was possible, and because invoices could be linked to payments, there wasn’t a discrepancy. But the board determined DoD had not met its burden of proof. U.S. Bank had produced credible evidence of no link. DoD had not rebutted this evidence. Instead, it had offered the conclusory statements of counsel and speculation. This was not enough to create an issue of fact. U.S. Bank was entitled to judgment on liability.

The claimant, U.S. Bank, is represented by Jeffrey A. Belkin, Hannah S. McLean, and Arabella Okwara of the Alston & Bird, LLP. The government is represented by Caryl A. Potter, Isabelle P. Cutting, and Aaron J. Weaver of the Air Force.

–Case summary by Craig LaChance, Senior Editor