Before Bryson, Circuit Judge, Friedman, Senior Circuit Judge, and Gajarsa, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge.
Appealed from: General Services Administration Board of Contract Appeals
Opinion for the court filed by Senior Circuit Judge FRIEDMAN, in which Circuit Judge BRYSON joins. Concurring opinion filed by Circuit Judge GAJARSA.
This appeal challenges the General Services Administration Board of Contract Appeals' (Board's) dismissal of the appellants' appeal from a contracting officer's decision. The appellants previously had withdrawn their appeal to the Board to pursue their appeal to the United States Claims Court; the Board dismissed that appeal without prejudice. The United States Claims Court held that it lacked jurisdiction because the appellants' filing of their appeal with the Board constituted an election of remedies. After this court affirmed that ruling, the appellants attempted to reinstitute their appeal to the Board, which dismissed it as untimely because not filed within the 90-day limitations period under the Contract Disputes Act. We affirm.
The facts are undisputed. The appellant Bonneville Associates, Limited Partnership (the other appellant, Machan Hampshire Properties, Ltd., was one of Bonneville's general partners, but now has no role in this case) sold an office building to the General Services Administration and agreed to make substantial repairs and alterations to the structure. Disputes arose over whether Bonneville properly had made those repairs and alterations. After four years of negotiations, the contracting officer on August 21, 1991 issued a written decision seeking $5.195 million from Bonneville for the cost of correcting the deficiencies. The contracting officer's letter informed Bonneville that it could appeal to the Board within 90 days of receiving the decision or "instead" could bring suit in the United States Claims Court within one year of such receipt.
On November 19, 1991, 90 days after receipt of the decision, Bonneville filed a notice of appeal with the Board. On January 8, 1992, before anything further had been filed, Bonneville "withdr[e]w" its notice of appeal, stating that it "will pursue its appeal in the U.S. Claims Court." It did not request that the termination of its appeal be without prejudice. The Board dismissed the appeal. Its order stated that "appellant filed a motion to withdraw the appeal filed at this Board so that it may pursue an appeal in the United States Claims Court instead," and that "[a]ccordingly, this appeal is DISMISSED WITHOUT PREJUDICE. Rule 28(a)(1)."
In January 1992, shortly before the Board dismissed the appeal, Bonneville filed suit in the United States Claims Court (now the Court of Federal Claims and hereinafter referred to as such) challenging the contracting officer's decision. On the government's motion the Court of Federal Claims dismissed this suit for lack of jurisdiction, holding that the filing of the appeal to the Board constituted an election of remedies that barred Bonneville from subsequently invoking the court's jurisdiction. Bonneville Assocs. v. United States, 30 Fed. Cl. 85, 88 (1993).
This court affirmed. Bonneville Assocs. v. United States, 43 F.3d 649 (1994). The court pointed out that for the election-of-remedies doctrine to apply the Board must have had jurisdiction over Bonneville's appeal, which it stated was "[t]he pivotal question here." Id. at 653. Bonneville contended that the Board had no jurisdiction because the Contract Disputes Act excluded from Board jurisdiction contracts for "the procurement of . . . real property in being." 41 U.S.C. § 602(a)(1) (1994). The government pointed to section 602(a)(3), which gives the Board jurisdiction over contracts for "the procurement of . . . alteration [or] repairs . . . of real property." The court concluded that "the contract was both for the procurement and repair/alteration of real property." Bonneville, 43 F.3d at 654 (emphasis in original). The court held: "The board had jurisdiction over Bonneville's appeal because the dispute between the parties concerned Bonneville's alleged breach of its duty under the warranty clause and other contract provisions to repair and alter the conveyed building [and therefore] the Court of Federal Claims properly applied the Election Doctrine to dismiss Bonneville's action without prejudice for lack of subject matter jurisdiction." Id. at 655.
Ten days after that decision, Bonneville sought to reinstate its appeal to the Board pursuant to Rule 28(a)(2) of the Board's rules. When Bonneville dismissed its appeal in 1992, that provision (discussed below) stated that the dismissal of an appeal without prejudice would be deemed to have been dismissed with prejudice if the appeal was not reinstated within three years or any shorter period the Board had prescribed. Bonneville contended that it was entitled to reinstate its appeal because it sought to do so within three years of the dismissal.
A divided Board disagreed. The Board applied the same principle that the federal courts had applied in construing the similar provision governing voluntary dismissals without prejudice in Federal Rule of Civil Procedure 41(a), namely, that an appeal so dismissed "leaves the situation as if the suit had never been brought." Noting that the 90-day period for appealing was jurisdictional, the Board concluded:
"Accordingly, because Bonneville voluntarily caused its appeal to be dismissed without prejudice in order to pursue the appeal in another forum, Bonneville is placed in the same position as if the first appeal had never been filed. The second filing does not relate back to the date of the first filing. Moreover, as the second complaint filed on December 29, 1994 is a "new appeal" filed after the expiration of the CDA ninety-day time limit, it is untimely. We lack jurisdiction to hear this appeal."
Chairman Daniels, Dissenting, stated that the Board's position was "built on a legal fiction - that Bonneville never brought this case to us before it filed its motion for reinstatement." Chairman Daniels suggested that "[a] more reasonable solution to this predicament would be to resolve the situation by taking into account the facts that (a) Bonneville did file its notice of appeal with us in a timely fashion and (b) at all relevant times, the contractor has been attempting to litigate its claim before a proper forum." He stated that this could be accomplished either by viewing the prior dismissal without prejudice as one "which contemplate[d] further proceedings [and ...