Claimant Survived a Motion to Dismiss But Backed Itself into a Jurisdictional Snafu

The government moved to dismiss the contractor’s claims as barred by res judicata. The contractor survived the motion by arguing its claims were new and had not been previously litigated. The COFC, however, found that if the claims were new, they should have been submitted to the agency first for a final decision. Thus, the court dismissed the contractor’s surviving claims for lack of jurisdiction.  

Avant Assessment, LLC v. United States, COFC No. 20-1185 

• Claim Preclusion Motion – The contractor filed suit in the COFC alleging that the government had constructively accepted rejected goods. The contractor moved to dismiss, arguing the claims were barred by res judicata. Specifically, the government argued the contractor had already presented these claims in an earlier appeal before the ASBCA. The court only dismissed some of the contractor’s claims. The court found some of the contractor’s claims were based on different operative facts that only became known during the ASBCA proceedings. Thus, those claims were never litigated in front of the board and were not precluded.  
• Jurisdictional Motion – The government filed a second motion to dismiss the remaining claims on jurisdictional grounds. The government reasoned that if those claims arose from different operative facts that were not before the ASBCA, then they were separate claims that had to be submitted to the agency for a final decision before the court could hear them. 
• Court Dismisses Surviving Claims – The contractor argued the surviving claims had been included in the original claim submitted to the agency. But the court sided with the government. The language in the original claim did not articulate the type of constructive acceptance the contractor was now alleging in court. This constructive acceptance theory had not been presented to the agency. The court lacked jurisdiction.  

The contractor is represented by Dirk D. Haire and Kristen W. Broz of Fox Rothschild LLP. The government is represented by Daniel B. Volk, Brian M. Boynton, Patricia M. McCarthy, and Martin F. Hockey, Jr. of the Department of Justice. 

–Case summary by Craig LaChance, Editor in Chief