COFC Castigates Department of Justice for Ignoring a Court Order and Violating the Duty of Candor to the Tribunal; Housing Authority of the City of Slidell v. United States, COFC No. 19-1583C


The plaintiff sued the government in the COFC, asserting claims under a certain type of HUD contract. The government contended that claims under that HUD contract arose under the Administrative Procedures Act, so the COFC lacked jurisdiction, and the claims had to be heard by a district court. It turned out, however, that in another case before the Seventh Circuit involving the same type of contract, the government took the position that the COFC had jurisdiction over the HUD contract claims under the Tucker Act. The COFC ordered the government to file a brief to explain its inconsistent positions. The government declined to file a brief and when pressed on jurisdiction equivocated, refusing to take a meaningful position. The court found that the government had failed to follow a court order. What’s more, by equivocating and taking inconsistent positions in different courts, the COFC found the government was violating is duty of candor to the tribunal. The COFC reserved the right to sanction the government and ordered it to file a brief that explained its position on jurisdiction.

The Housing Authority for the City of Slidell sued the government in the Court of Federal Claims, asserting claims arising out of Department of Housing and Urban Development contract called an Annual Contributions Contract (ACC). The government moved to dismiss Slidell’s suit for lack of jurisdiction. The government contended that claims arising under ACC’s belong in district court pursuant to the Administrative Procedures Act.

But the court noted that the government’s position in the COFC was inconsistent with the position it had taken in another case pending before the Seventh Circuit. In the Seventh Circuit case, the government argued that claims arising under a HUD ACC are essentially breach of contract claims that fell under the COFC’s Tucker Act jurisdiction.

During oral argument on the government’s motion to dismiss, the court asked the government to address the conflicting positions. The government alleged its positions on jurisdiction were not inconsistent because the government had revered its position on the issue. The government pointed to a confession of error brief that had been authorized by the Solicitor General and filed in the case pending before the Seventh Circuit. That brief, the government claimed, clarified that the government’s position was that the district court, not the COFC, has jurisdiction over ACC claims.

Following oral argument, however, the court determined that the government’s characterization of the confession of error brief was false. Instead of asserting that the district court had exclusive jurisdiction over ACC claims, the brief admitted that district courts have concurrent jurisdiction with the COFC.

In light of this, the court denied the government’s motion to dismiss. The court decided to provide the government an opportunity to explain itself. The court ordered the government to file a supplemental brief explaining whether (1) it stood by the its view in the as articulated in the Seventh Circuit that the COFC and district courts have concurrent jurisdiction, or (2) it believed the claims in the Seventh Circuit case were somehow distinguishable from the claims before the COFC. The court concluded the order by noting that if the government did not file a brief, the court would understand that the government’s current view was consistent with the position it took in the Seventh Circuit—i.e., that the district courts and the COFC have concurrent jurisdiction.

The government did not file a supplement brief. The court ordered a status conference to give the government another opportunity to explain itself. At the conference, the government asserted that it did not file a brief because it did not want to waste the court’s or the parties’ time rehashing arguments that had already been addressed, and that the government did not believe that a brief would meaningfully advance the case.  When pressed further, the government claimed that its position was perhaps that the Seventh Circuit case was distinguishable from the COFC case. That distinction, the government now claimed, was not based on difference provision in the ACC’s but rather on the ways in which the claims had been pleaded in the complaints in each case.

The government’s argument did not sit well with the court. The court reasoned that by not filing a brief, the government had effectively made a false representation the court. As noted, the court’s order stated that the court would understand the failure to file a brief as meaning that the government’s position was consistent with its concurrent-jurisdiction position asserted in the Seventh Circuit. But if that was the case, then the government’s previous argument—that district courts have sole jurisdiction over ACCs—had misrepresentation.

Moreover, the court opined, the government’s position at the status conference amounted to a failure to follow the court’s order. Nothing in the court’s order on supplemental briefing allowed the government to decline to file a supplemental brief while simultaneously avoiding an admission that the court properly ruled on the motion to dismiss. The court’s order had given the government three options: (1) file a brief explaining how its position was consistent with its position in the Seventh Circuit, (2) file a brief explaining how this case was distinguishable from the the Seventh Circuit, or (3) not a file brief in which case the court would assume that the government had adopted the position it taken before the Seventh Circuit. The court found, however, that the government had improperly elected a fourth option: decline to file a supplement while taking an undisclosed stealth position contrary to the court’s order.

But, the court reasoned, in declining to file a supplemental brief, the government had failed to disclose its true view regarding the court’s jurisdiction over ACC cases. In fact, the government had, in effect, affirmatively represented to the court a view of jurisdiction—district courts only—to which it did in fact subscribe. The court noted that it had spent countless hours trying to untangle the government’s hodgepodge of arguments, and it still didn’t know whether the government’s positions were reconcilable.

Ultimately, it appeared to the court that the government was trying to avoid a judicial estoppel to preserve various inconsistent positions on ACC jurisdiction in different cases pending before different courts. As the court noted, however, the purpose of the doctrine of the judicial estoppel is to protest the integrity of the judicial system, and the government’s equivocation on this issue was creating confusion and wasting time.

The court reserved judgment on whether it should sanction the government. Instead, it ordered the government to file a supplemental brief explaining whether and how its position in this case was distinguishable from its position before the Seventh Circuit.

COFC - Slidell Housing Authority