After Arbaugh: Neither Claim Submission, Certification, Nor Timely Appeal are Jurisdictional Prerequisites to Contract Disputes Act Litigation

Abstract

As we approach the fortieth anniversary of the Contract Disputes Act of 1978 (CDA), this foundational waiver of sovereign immunity continues to be riddled with the tell-tale signs of repeated “drive-by jurisdictional rulings.” 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. To guide this effort, the Court — through a nascent series of opinions dating back to the 2006 decision in Arbaugh v. Y&H Corporation — has provided a bright-line rule that a statutory requirement is only jurisdictional if Congress has expressed a clear intent that the requirement carries jurisdictional weight. 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, 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. 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. 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.