United States: Unique Aspects Of Practice Before The Boards Of Contract Appeals – No Interlocutory Appeals


Litigation before the Armed Services and Civilian Boards of Contract Appeals (ASBCA and CBCA, or Boards) involves some unique aspects not found in typical civil cases in federal courts. The differences begin with the ease of filing an appeal with the Boards. Contractors can obtain early discovery with the government's prompt production of the appeal, or "Rule 4," file, which is supposed to – but rarely does – contain all relevant documents. The Boards promote robust, and usually free, alternative dispute resolution (ADR) options. While the Boards generally use quick and effective motion practice, they are reluctant to deny litigants their day in court, so motions for summary judgment by either party are rarely successful. During hearings, the Boards employ the Federal Rules of Evidence as a guide, which means judges often admit disputed evidence but say they will give it "the weight it deserves." Pre-hearing briefs are employed to excellent effect, and the presiding judges are well informed about the issues. Three-judge panels, including the hearing judges, decide the appeals.

We will explore some of these differences in more depth in later posts, but here we examine a single aspect of Board procedure: Interlocutory appeals are not available at the ASBCA.

  1. No interlocutory appeals from Board decisions.

In Public Warehousing Co., K.S.C., ASBCA No. 58088 (Mar. 7, 2017), the Board had previously issued orders staying Public Warehousing's appeal due to the pendency of a criminal case in district court and granting the government leave to amend its answer to assert affirmative defenses. Public Warehousing moved the Board to certify these earlier orders for interlocutory appeal to the Court of Appeals for the Federal Circuit ("Federal Circuit"). The Board found that it lacked authority to certify questions for interlocutory appeal.

The Board relied on (1) the plain language of 28 U.S.C. § 1295(a)(10), which states that the Federal Circuit has exclusive jurisdictions of appeals from "final decisions" of the Boards, and (2) 28 U.S.C. § 1292, which grants the courts of appeal jurisdiction over interlocutory appeals from district courts but which fails to mention the Boards.

The ASBCA has handled this issue even-handedly, refusing both the government's and contractors' requests that it certify questions for interlocutory appeal. The Public Warehousing case involved a request by a contractor. See also Freightliner Corp., ASBCA No. 42982, 94-2 BCA ¶ 26,705 (Board lacks authority under 28 U.S.C. § 1292(b) to certify an interlocutory order for appeal to the Federal Circuit). In General Dynamics Ordnance & Tactical Systems, ASBCA Nos. 56870, 56957, 10-2 BCA ¶ 34,525, the Board denied a government request to certify an interlocutory order for appeal. The government objected to the release of documents concerning the contractor's competitor but, after in camera review, the Board ordered the government to produce the documents under a protective order. The government asked the Board to certify its order for interlocutory appeal and requested a stay during the appeal. The Board held it had no authority to certify an interlocutory order for review at the Court of Appeals for the Federal Circuit, and it also declined to issue the requested stay.

The CBCA has never considered a request for an interlocutory order in a published opinion. The IBCA, now subsumed within the CBCA, has refused to certify orders for interlocutory review. Marshall Associated Contrs., Inc., IBCA 1901, 3433-3435, 98-1 B.C.A. ¶ 29,565, 1998 IBCA LEXIS 3; Scott Timber Co., IBCA 3771-97, 98-1 B.C.A. (CCH) ¶ 29,555, 1998 IBCA LEXIS 2 at 11 n.1 (Feb. 4 1998). One lone board – the Agriculture Board of Contract Appeals (also subsumed within the CBCA) – certified an interlocutory appeal to the Federal Circuit in Shawn Montee, Inc., AGBCA No. 2004-153-R et al., 05-1 BCA ¶ 32,889. But the Federal Circuit then declined to hear Shawn Montee's board-certified interlocutory appeal in an unpublished decision, avoiding any jurisdictional analysis and stating only that the "better course" would be for the AGBCA to fully adjudicate all issues in the case before the court's appellate review.

  1. What does the Federal Circuit say?

The Federal Circuit has often stated that it lacks jurisdiction to hear interlocutory appeals. In a line of cases involving appeals from Board decisions on entitlement issues only, the court emphatically insists that it has jurisdiction to hear only appeals from final decisions of a board. Considering an appeal from a Board decision that resolved entitlement but remanded quantum issues to the parties, the court stated: "We have jurisdiction over this appeal, if at all, under 28 U.S.C. § 1295(a)(10)(1994). That section provides for our appellate review "of an appeal from a final decision of an agency board of contract appeals. . . ." AAA Engineering & Drafting, Inc. v. Widnall, 129 F.3d 602 (Fed. Cir. 1997) (emphasis added). Without mentioning or analyzing 28 U.S.C. § 1292(c)(1), which governs the court's jurisdiction over interlocutory appeals, the court determined that a decision on entitlement only was not a "final decision" because the Board continued to assert jurisdiction should the parties fail to agree on quantum. Thus, the court held, it lacked appellate jurisdiction. See, e.g., Teledyne Continental Motors, General Products Division v. United States, 906 F.2d 1579, 1582 (Fed. Cir. 1990); see also United States v. W.H. Moseley Co., 730 F.2d 1472, 1474 (Fed. Cir. 1984) (dismissing appeal from the ASBCA's order directing the contracting officer to issue a decision, the court said, "[I]t is well established that this court, as an appellate tribunal, may review only 'final decisions'.").

In an anomalous 1986 decision, the Federal Circuit expressly held it had jurisdiction under 28 U.S.C. § 1292(c)(1) from an interlocutory order of the GSBCA under the Brooks Act. Electronic Data Systems Federal Corp. v. General Services Admin. Bd. of Contract Appeals, 792 F.2d 1569, 1575 (Fed. Cir. 1986) ("EDS Federal"). The court closely examined the language of 28 U.S.C. § 1292(c)(1) granting it jurisdiction "of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title." (Emphasis added.) Subsections (a) and (b) cover, inter alia, orders by district courts involving injunctions and interlocutory orders by district courts certified to involve controlling issues of law.

The issue, the court stated, is whether the phrase "described in subsection (a) or (b) of this section" means the nature of orders described in subsections (a) and (b) – specifically, in EDS Federal, orders involving injunctions – or orders that, in addition to being the right type of order, were issued by a district court. Based primarily on one statement in the legislative history of the Federal Courts Improvement Act of 1982 that the Act would "give the Court of Appeals for the Federal Circuit jurisdiction of interlocutory appeals in cases that will otherwise come to it on appeal," the court held that the "described in subsection (a) or (b)" language applied only to the type of order. Thus, the court reasoned it had jurisdiction over appeals from the GSBCA's injunction-related orders in cases that would otherwise come to it on appeal.

The narrow ruling in EDS Federal, which involved an injunction issued by the GSBCA, was that "Injunctive orders from any tribunal within our exclusive appellate jurisdiction fall within the jurisdiction granted to this court by § 1292(c)(1)" (emphasis added). In the Public Warehousing decision, the ASBCA distinguished EDS Federal because it dealt specifically with injunctions, arose under the Brooks Act, and reached the Federal Circuit through a bizarre route involving a federal district court. The Board found that the W.H. Moseley case still controlled with respect to interlocutory Board orders. Thus, the issue seems to be dead at the ASBCA and, most likely, the CBCA as well.

  1. What does this mean for contractors?

The absence of a mechanism for interlocutory review obviously has pros and cons in appeals before the Boards. It removes one source of complexity, making litigation more linear and – perhaps – cheaper and faster, but it deprives any party that must comply with a non-appealable interlocutory order of an important strategic option that conceivably could shorten or simplify the appeal.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions