As we approach the fortieth anniversary of the Contract Disputes Act of 19781 (CDA), this foundational waiver of sovereign immunity continues to be riddled with the tell-tale signs of repeated "drive-by jurisdictional rulings." 2 This unfortunate state of affairs shocks the conscience when considered in light of the Supreme Court's systematic efforts to root out such travesties by directing lower courts to reassess prior jurisdictional classification of statutory requirements.3 To guide this effort, the Court—through a nascent series of opinions dating back to the 2006 decision in Arbaugh v. Y&H Corporation4—has provided a bright-line rule that a statutory requirement is jurisdictional only if Congress has expressed a clear intent that the requirement carries jurisdictional weight.5 Heeding the Supreme Court's call, in 2014, the U.S. Court of Appeals for the Federal Circuit issued its Sikorsky Aircraft Corporation v. United States decision,6 holding that the CDA's statute of limitations is a nonjurisdictional claim processing requirement— despite the Circuit's prior precedent treating the deadline as jurisdictional.7 Notwithstanding this step in the right direction, the Federal Circuit continues to reflexively treat the CDA's claim submission requirements as jurisdictional prerequisites to CDA litigation.8 Applying the Supreme Court's new bright-line rule to other CDA requirements that have been traditionally classified as jurisdictional, this article demonstrates that neither claim submission, certification, nor timely appeal requirements are jurisdictional prerequisites to CDA litigation. It concludes by urging contractors and their counsel to raise the arguments herein before the Federal Circuit and provides practical suggestions for doing so.

Footnotes

1. Contract Disputes Act of 1978, Pub. L. 95-563, 92 Stat. 2383 (codified as amended at 41 U.S.C. §§ 7101-09 (2012)). The CDA was initially codified at 41 U.S.C. §§ 601–613 (1982), and more than thirty years of precedent reflects that numbering scheme. In 2011, as part of a formal recodification of Title 41, Congress reorganized and renumbered the CDA (with no substantive changes) as currently found at 41 U.S.C. §§ 7101–7109 (2012). See infra note 138; Act of Jan. 4, 2011, Pub. L. No. 111-350, § 2, 124 Stat. 3677, 3677 (2011). This article refers only to the current (recodified) version of the statute.

2. See Arbaugh v. Y & H Corp., 546 U.S. 500, 511 (2006).

3. See id. (citations omitted) ("We have described such unrefined dispositions as 'drive-by jurisdictional rulings' that should be accorded 'no precedential effect' on the question whether the federal court had authority to adjudicate the claim in suit."); see also infra Part I.A.

4. See generally Arbaugh, 546 U.S. 500 (2006).

5. See, e.g., id. at 515–16 ("If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."); see also infra Part I.A.

6. Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014).

7. Id. at 1320–22.

8. See Steven L. Schooner & Pamela J. Kovacs, Affirmatively Inefficient Jurisprudence?: Confusing Contractors' Rights to Raise Affirmative Defenses with Sovereign Immunity, 21 FED. CIR. B.J. 685, 704–06 (2011). Professor Schooner has previously argued that the government's approach to the claim submission and certification requirements constitutes a "breach of its contingency promise." See Steven L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike Government, 50 AM. U. L. REV. 627, 702 (2001) (Many of the government's standard remedy-granting clauses signal to contractors that if they submit their offers without inflating them to account for unanticipated contingencies, the government promises to make them whole when unexpected circumstances arise. Contractors rely on these promises. Creating inefficient and costly impediments to obtaining those remedies calls into question the original bargain.).

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