MOTION FOR RECONSIDERATION DENIED:  June 23, 2008 
CBCA 978 
THE BOEING COMPANY, SUCCESSOR-IN-INTEREST 
OF ROCKWELL INTERNATIONAL CORPORATION, 
A p p e l l a n t , 
v. 
DEPARTMENT OF ENERGY, 
Respondent. 
Richard J. Ney and S. Jean Kim of Chadbourne & Parke LLP, Los Angeles, CA, 
counsel for Appellant. 
Brady L. Jones, III and Kaniah Konkoly-Thege, Office of Legal Services, 
Environmental Management Consolidated Business Center, Department of Energy, 
Cincinnati, OH, counsel for Respondent. 
Before Board Judges GILMORE , BORWICK, and McCANN. 
McCANN, Board Judge. 
The Department of Energy (DOE) has moved for reconsideration of the Board’s 
decision declining to dismiss the complaint of The Boeing Company (Boeing), successor-in­
interest of Rockwell International Corporation (Rockwell),  or alternatively for a stay of this 
proceeding to allow Boeing to seek a decision from the district court on the question of 
whether the United States breached the plea agreement. 

 
  
 
 
  
                        
  
 
  
 
  
  
 
  
 
 
  
  
          
              
2 CBCA 978 
Background 
In its original motion, DOE moved to dismiss CBCA 978 on the ground that the 
Board lacked the authority to determine whether certain defense costs incurred in 
United States ex rel. Stone v. Rockwell International Corp., No. 89-C-1154 (D. Colo. filed 
July 5, 1989), are allowable.  The costs at issue are the costs of defending counts three 
through five, which Boeing contends were incurred only because the Department of Justice 
brought counts three through five in violation of a prior criminal plea agreement.
1 
In the motion, DOE contended that this Board lacked the authority to determine 
whether the criminal plea agreement was breached and, thus, could not determine the 
allowability of the defense costs.  In denying DOE’s motion, we held only that we have 
jurisdiction to determine the allowability of costs under the contract.  We made no ruling on 
whether, under the specific circumstances present in this case, we had the authority to 
determine the issue of whether the plea agreement had been breached. 
DOE has moved for reconsideration of our prior decision.  DOE again contends that 
the Board lacks the authority to determine whether the plea agreement has been breached, 
and, thus, it contends that we cannot determine whether the costs of defending against 
counts three through five are allowable.  DOE cites to a number of cases that purportedly 
hold that only the court where the criminal plea agreement was signed can determine 
whether the plea agreement has been breached.  See Respondent’s Motion for 
Reconsideration at 5-10. DOE also argues in its reconsideration motion that the district 
court already ruled that the plea agreement had not been breached, and that Boeing appealed 
that decision and then voluntarily withdrew that appeal on mootness grounds.  Thus, DOE 
argues, Boeing should not now be allowed to proceed at the Board for a ruling on the breach 
issue when Boeing could have gotten a proper ruling at the court of appeals.  
Board Rule 26 provides that reconsideration “may be granted . . . for any of the 
reasons stated in Rule 27(a) and the reasons established by the rules of common law or 
1 Count one of the complaint alleged False Claims Act (FCA) violations; count 
two, common law fraud; count three, breach of contract; count four, payment by mistake of 
fact; count five, unjust enrichment; and count six, additional FCA violations.  Counts one 
through five were brought by plaintiff the United States and count six was brought by 
plaintiff Stone.  See  Amended Complaint, Stone  (filed Dec. 20, 1996); Declaration of 
Richard Ney (Dec. 13, 2006), Exhibit 25.   Rockwell was found liable only on part of count 
one. 

    
   
   
  
   
  
  
   
            
          
  
 
   
 
 
 
    
 
  
 
3 CBCA 978 
equity applicable between private parties in the courts of the United States.”  Rule 26 further 
states that “[a]rguments alreadymade and reinterpretations of old evidence are not sufficient 
grounds for granting reconsideration. . . .” Rule 27(a) lists a number of reasons  upon which 
parties may rely when moving for reconsideration.  These reasons include, inter alia, newly 
discovered evidence which could not have been discovered earlier, justifiable or excusable 
mistake, inadvertence, fraud, and misrepresentation.  See Flathead Contractors, LLC v. 
Department of Agriculture, CBCA 118-R, 07-2 BCA ¶ 33,688, at 166,769. 
In moving for reconsideration, DOE has essentially made the same legal and factual 
arguments that it made in its original motion, just in greater detail.  Also, it has made an 
additional argument that we lack authority to rule on the breach issue because a decision has 
been made by the district court that the plea agreement was not breached, and that Boeing 
appealed that decision and then voluntarily withdrew it. With regard to the same arguments 
that were made in the original motion, no grounds exist for granting a motion for 
reconsideration.  With regard to the added argument, undoubtedly, it could have been made 
in the original motion. The evidence that was presented regarding prior court decisions and 
proceedings has always been available. This is not newly discovered evidence.  Therefore, 
DOE has failed to satisfy the newly discovered evidence ground or any of the grounds set 
forth in Rules 26 and 27 for the granting of a motion for reconsideration.  Accordingly,  the 
motion must fail.   
Previously, in CBCA 337, 338, and 339, the parties cross-moved for summary relief 
on the issue of whether costs incurred in Stone  in unsuccessfully defending against False 
Claims Act (FCA) violations were allowable costs under the contract.  In our ruling on this 
issue, we found that such costs were unallowable.  The Boeing Co. v. Department of Energy, 
CBCA 978, 08-1 BCA ¶ 33,822. 
Boeing incorrectly interpreted our decision to mean that all of the defense costs 
incurred in Stone, including those not associated with FCA violations, were unallowable. 
As a result, Boeing filed CBCA 978 alleging that, since counts three through five were 
brought in violation of a criminal plea agreement, the defense costs for counts three through 
five should be treated as allowable instead of unallowable.   
Boeing’s argument in CBCA 978 is a contingent argument for allowability.  It is 
contingent upon the defense costs for counts three through five being unallowable to begin 
with under the terms of the contract.  If such defense costs are allowable under the contract 
terms, there is no point in making this additional argument. To resolve this initial issue of 
allowability, the parties have agreed in CBCA 337, 338, and 339 to address it on 
cross-motions for summary relief.  A briefing schedule has been set.  

       
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4 CBCA 978 
Under these circumstances, until a decision is made on the initial allowability of 
defense costs for claims three through five, DOE’s argument based upon an alleged breach 
of the plea agreement is premature. 
Decision 
Respondent’s motion for reconsideration is DENIED and the proceedings will not 
be stayed.  Respondent, however, may pursue its argument that the plea agreement was 
breached, should the time come when it would no longer be premature.  We make no ruling 
here on whether the Board, under the circumstances present in this case, has the authority 
to rule that the plea agreement was breached. 
R. ANTHONY McCANN 
Board Judge 
We concur: 
BERYL S. GILMORE ANTHONY S. BORWICK 
Board Judge Board Judge