Northrop Grumman Corp. v. United States

70 Fed. Cl. 230, 2006 U.S. Claims LEXIS 57, 2006 WL 513669
CourtUnited States Court of Federal Claims
DecidedMarch 1, 2006
DocketNo. 96-760C
StatusPublished
Cited by6 cases

This text of 70 Fed. Cl. 230 (Northrop Grumman Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northrop Grumman Corp. v. United States, 70 Fed. Cl. 230, 2006 U.S. Claims LEXIS 57, 2006 WL 513669 (uscfc 2006).

Opinion

ORDER

HORN, Judge.

Plaintiff Northrop Grumman advised the court that it had filed an overhead claim at the Armed Services Board of Contract Appeals (ASBCA Nos. 55061, 55062), which included claims concerning the Georgia Production Site (GPS) facility. The GPS facility also is the subject of count XIII of the plaintiffs second amended complaint before this court. Both parties have agreed that the costs sought before the ASBCA (costs associated with general purpose assets) are different from the costs sought before this court (costs associated with special purpose TSSAM1 assets). Therefore, neither party, nor this court, perceives there to be a jurisdictional issue stemming from the GPS-related claims in the two forums. However, because of the presence of the GPS facility in both claims, there remains the question of whether the cases should be consolidated. The Contract Disputes Act provides that:

If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards, for the convenience of parties or witnesses or in the interests of justice, the United States Court of Federal Claims may order the consolidation of such suits in that court or transfer any suits to or among the agency boards involved.

41 U.S.C. § 609(d) (2000). The parties have briefed the issue extensively. Plaintiff argues against consolidation; defendant argues for consolidation of the claims in this court, or, that the parties approach the ASBCA for a stay.

This court is afforded broad discretion on whether or not to consolidate cases. Morse Diesel Int’l, Inc. v. United States, 66 Fed.Cl. 801, 804 (2005) (citing Joseph Morton Co. v. United States, 757 F.2d 1273, 1280 (Fed.Cir.1985)), petition denied, In re Morse Diesel Int’l, Inc., 163 Fed.Appx. 878 (Fed. Cir.2006) (unpub.). Among the factors which have been considered by courts on the fact specific questions of consolidation of cases are:

(1) whether the dispute before the board and the court concern the same contract;
(2) whether the claims before the court and the board duplicate claims or have overlapping and related issues; (3) whether [232]*232plaintiff initially chose to appeal its claims before a court or a board; (4) whether one forum or the other has already made significant progress on the claims; (5) whether concurrent resolution would result in an inefficient allocation of the court’s, board’s, or party’s resources; (6) whether separate forums would reach inconsistent results.

Morse Diesel Int’l, Inc. v. United States, 66 Fed.Cl. at 804 (in which a later-filed General Service Administration Board of Contract Appeals case was transferred to and consolidated with the earlier Court of Federal Claims case, at the request of the government, and over the opposition of the plaintiff); see also Precision Pine & Timber, Inc. v. United States, 45 Fed.Cl. 184, 135-36, 138 (1999) (in which the plaintiff moved to transfer and consolidate a later-filed Agricultural Board of Contract Appeals (AGBCA) claim with the earlier Court of Federal Claims case, the government counter-moved to consolidate the claims in the AGBCA, and the court declined to transfer either case); Giuliani Contracting Co. v. United States, 21 Cl.Ct. 81, 82-84 (1990) (in which a later-filed Claims Court case was transferred and consolidated with an earlier ASBCA case, pursuant to the government’s request, and over the plaintiffs opposition). Because of the classified aspects of the ease before this court, security is another factor for consideration on the question of the consolidation of the two cases.

The complaint before the ASBCA was filed June 28, 2005. The TSSAM complaint before the court was filed before the ASBCA claim, and significant progress has been made in the court case, including extensive discovery and resolution of five counts of the originally filed complaint. Neither party has suggested that the court case should be transferred to and consolidated with the ASBCA case. Defendant seeks transfer of the ASBCA case to the Court of Federal Claims, or a stay of the ASBCA case. Plaintiff opposes the transfer and consolidation proposed by the plaintiff, and opposes a stay in the ASBCA case. This court can order consolidation. The court cannot order a stay in the ASBCA. The parties would have to agree and approach the ASBCA together. Therefore, this court will only address the issues of transfer and consolidation.

Plaintiff argues that the claims in the two forums do not overlap each other. Plaintiff seeks to demonstrate to this court that certain GPS facilities and equipment were direct costs identifiable exclusively with the TSSAM contract. In contrast, plaintiff states that it seeks to demonstrate to the ASBCA that general purpose assets at the GPS and general purpose costs from its military contracts should be pooled and allocated to the overall business base of Northrop Grumman’s Military Aircraft Systems Division—Southern California (MASD—SC). Northrop Grumman argues that these latter costs are properly characterized as overhead costs, and are allocable to its 1997, flexibly priced, military aircraft business, rather than to commercial contracts. If plaintiff were to prevail before the ASBCA, plaintiff estimates that about $8,000.00 of an alleged $34,738,643.00 million loss experienced in connection with the disposition of the general purpose assets would be allocable to the TSSAM contract.

Defendant acknowledges that the two claims are not seeking the same costs and do not overlap. Defendant, however, argues that, without consolidation, there is a risk of one forum making determinations that would collaterally estop the second forum. The doctrine of collateral estoppel appears to operate between the Boards of Contract Appeals and this court. See United States v. Utah Constr. and Mining Co., 384 U.S. 394, 422, 418-23, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (the Supreme Court found that the Atomic Energy Commission Advisory Board of Contract Appeals had the authority to make conclusive and final administrative determinations, based on the principles of collateral estoppel, and the Court stated: “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”) (citations omitted); Crowley v. United States, 398 F.3d 1329, 1342 (Fed.Cir.2005) (Dyk, J., concurring) (noting that with respect to the [233]*233Court of Federal Claims and the Merit Systems Protection Board, “a decision by one will be collateral estoppel as to the other”), cert. denied, — U.S.-, 126 S.Ct. 733, 163 L.Ed.2d 569 (2005); Caldera v. Northrop Worldwide Aircraft Servs., Inc., 192 F.3d 962, 971 n.

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Bluebook (online)
70 Fed. Cl. 230, 2006 U.S. Claims LEXIS 57, 2006 WL 513669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northrop-grumman-corp-v-united-states-uscfc-2006.