MOTION FOR COSTS AND ATTORNEY FEES DENIED:  June 21, 2007
 
CBCA 95
 
MOUNTAIN VALLEY LUMBER, INC.,
 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Alan I. Saltman and Richard W. Goeken of Saltman & Stevens, P.C., Washington, 
DC, counsel for Appellant. 
Kenneth S. Capps, Office of the General Counsel, Department of Agriculture, 
Denver, CO; and Jennifer T. Newbold, Office of the General Counsel, Department of 
Agriculture, Missoula, MT, counsel for Respondent. 
POLLACK, Board Judge. 
Appellant seeks $40,330 in costs and attorney fees for discovery.  That figure does not 
include the costs for the instant motion.  Appellant says that absent such an award, the Board 
will be left with no effective remedy where the Government engages in extended procedural 
gamesmanship and where grudging compliance with orders of the Board unjustifiably impose 
large discovery costs on appellants.  Moreover, appellant charges that failure to grant the 
motion will reward the Government for failing to comply in a timely manner with the 
Government’s basic obligations in discovery and only encourage such conduct in the future. 
This case arises out of appellant’s attempt to secure documents, first from the Forest 
Service (FS) and then from the Department of Justice (DOJ). Appellant’s attempts took 

 
  
    
      
  
    
        
 
 
    
    
 
   
    
   
    
     
  
 
 
 
    
    
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many fits and starts, with the FS and DOJ resisting attempts by appellant to secure the 
documents.  Ultimately, after considerable time and after various filings and rulings by the 
Board, DOJ did provide a privilege log, the Board reviewed the log, and the documents were 
confirmed as privileged.  For purposes of this decision, I need not address whether the 
actions of the Government, be it through the FS or DOJ, were of such a nature to constitute 
discovery abuse.  I need not make a finding as to abuse, because I find that this motion is not 
sustainable based on the fact that the Board lacks the authority to impose the monetary 
sanctions on the Government for discovery abuse sought by appellant. 
Appellant relies on language in the Contract Disputes Act (CDA or Act), 41 U.S.C.A. 
§§ 601-613 (2006), as the principal basis for it to claim Board authority to issue monetary 
sanctions.  When initially passed in 1978, the Act specifically granted to the boards, 
“jurisdiction to decide any appeal from a decision of the contracting officer relative to a 
contract made by any agency. . . .”  Section 8(d) of the Act also provided that the agency 
boards could grant “any relief that would be available to a litigant asserting a contract claim 
in the United States Court of Claims.”  Id. 607(d).  Through later amendments the wording 
United States Court of Claims was changed to the United States Claims Court and thereafter 
to the United States Court of Federal Claims.  It is the wording “any relief that would be 
available to a litigant in the United States Court of  Federal Claims” (the current language) 
that is  the focus of appellant’s argument.  For purposes of accuracy,  in this ruling,  I  refer 
to this court as the United States Court of Federal Claims, unless I am addressing a court or 
board decision which cites one of the earlier court names.   
Appellant recognizes that the matter of sanctions raises issues relating to the waiver 
of sovereign immunity by the Government.  With that in mind, appellant says Congress has 
waived the Government’s sovereign immunity so as to authorize the Civilian Board of 
Contract Appeals (CBCA) to grant the relief appellant asks.  Appellant states, “This waiver 
of sovereign immunity comes from two sources: (1) the fact that the government has waived 
its sovereign immunity from costs and attorney’s fees at the Court of Federal Claims (COFC) 
and (2) the Contract Disputes Act (CDA), which expressly provides the Board with authority 
to grant ‘any relief” available at the COFC.”  
The FS disagrees with appellant.  In defense of the motion, the FS cites a number of 
cases which it asserts establish that this Board cannot issue monetary sanctions against the 
Government for discovery abuses.  Central to the issue of the authority of a board of contract 
appeals to exercise monetary sanctions is the decision in Fidelity Construction Co. v. United 
States , 700 F.2d 1379 (Fed. Cir. 1983).  Fidelity involved a claim for attorney fees under the 
Equal Access to Justice Act (EAJA). It did not involve a claim for sanctions.  In analyzing 
the claim before it, the Court first stated the following: 

  
 
    
       
   
     
  
  
  
  
     
 
  
    
  
        
3 CBCA 95 
We begin our analysis of the board’s authority to award attorney fees against 
the United States, as we did in our analysis of the authority to award interest 
against the United States, by stressing that the doctrine of sovereign immunity 
must be overcome before there can be an award of such attorney fees.  To 
overcome this doctrine, we must therefore find specific statutory language  that 
expressly authorizes such an award.  Nibali v. United States , 634 F.2d 494, 497 
(Ct. Cl. 1980), and cases cited therein.  The waiver of sovereign immunity 
must be unequivocally expressed. Neither this court nor any agency is 
authorized to award attorney fees against the United States by mere implication 
or by “negative inference.” 
700 F.2d at 1385. 
The Court continued that if EAJA empowered the board to award attorney fees, the 
Court would expect to find that grant of authority in a specific statutory provision of that Act. 
It did not.  The Court then turned to discussing attorney fees in relation to the CDA.  There 
the Court expressly rejected the contention that the reference to the CDA in Section 204 of 
EAJA (28 U.S.C. § 2412(d)(3)) rendered EAJA applicable to decisions rendered by boards 
of contract appeals.  The specific language in EAJA provided: 
In awarding fees and other expenses under this subsection to a prevailing party 
in any action for judicial review of an adversary adjudication, as defined in 
subsection (b)(1)(C) of section 504 of title 5, United States Code, or an 
adversary adjudication subject to the Contract Disputes Act of 1978, the court 
shall include in that award fees and other expenses to the same extent 
authorized in subsection (a) of such section, unless the court finds that during 
such adversary adjudication the position of the United States was substantially 
justified, or that special circumstances make an award unjust. 
The Court noted that Section 204 of EAJA authorized a “court” to award fees and said 
nothing about an administrative tribunal. The Court focused on the point that there was no 
express language in EAJA granting a board of contract appeals authority to award fees and 
expenses against the United States and said that no such authority would be implied.  Id. at 
1386. 
The Court then turned to an alternative argument put before it in Fidelity . This 
argument asserted that authority to issue relief under EAJA was incorporated through 
Section 8(d) of the CDA to the boards of contract appeals.  The Court said:  

 
 
       
 
 
 
 
      
    
 
   
   
 
  
 
  
4 CBCA 95 
To this end, Fidelity contends that the EAJA may be applied to the board 
through section 8(d) of the CDA, which states that “the agency board is 
authorized to grant any relief that would be available to a litigant asserting a 
contract claim in the Court of Claims.” 41 U.S.C. § 607(d). Although this 
argument is attractive and has been, in fact, successful in some board 
proceedings, we are not persuaded. 
700 F.2d at 1387. 
The Court later continued: 
Section 8(d) of the CDA was a floor amendment inserted to provide 
adequate authority to resolve breach of contract claims at the agency level. 
Nothing in the legislative history of EAJA suggests that Congress intended this 
general provision of the CDA to take precedence over its specific 
determinations respecting the powers of boards to award fees. 
As we noted previously, Congress must expressly authorize an award 
of fees against the United States with specific statutory language.  In 
construing a statute waiving the sovereign immunity of the United States, great 
care must be taken not to expand liability beyond that which was explicitly 
consented to by Congress. It is an error to suppose that the ordinary canons of 
statutory construction are to be applied in this context, if they would add 
anything to what Congress has expressly said.  Where, as here, a party’s 
argument is “hopelessly dependent on implication and negative inferences,” 
it ultimately must fail.  Nibali v. United States , 634 F.2d at 497.  The thrust of 
the Supreme Court’s most recent decision, United States v. Erika , 456 U.S. 
201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982), is that broad and general language 
which might be construed as consenting otherwise, will not be so construed 
when Congress has elsewhere specified how and to what extent it consents to 
the specific liability to be enforced, or refuses consent. 
Id. 
I am mindful that the Fidelity decision dealt with the scope of  EAJA and whether the 
language in EAJA made it applicable to boards, as well as to the COFC.  The discussion as 
to Section 8(d) of the CDA was not the primary focus of the Fidelity decision, and the 
decision did not discuss the authority of a board to issue monetary sanctions due to discovery 
abuse.  Nevertheless, the Court did address Section 8(d) in Fidelity  and that discussion 
spread a wide net as to the need for specific and clear statutory language in order to waive 

  
 
 
   
      
        
     
 
 
  
    
 
 
   
 
  
 
      
 
  
   
   
  
5 CBCA 95 
sovereign immunity. The decision made it evident that in order to succeed on a claim for 
attorney fees, be it through EAJA or any other route, the authority to secure monetary relief 
against the sovereign must be specifically and clearly provided.  Where sovereign immunity 
is being waived, and that would be the case for monetary discovery sanctions by a board, the 
Court was clear that specific authority was needed and that relief could not be justified 
through inference and implication. As to the argument that this portion of Fidelity was dicta, 
I recognize that, but do not find that its status as dicta justifies the Board ignoring what is 
otherwise clear direction as to what is needed in order to waive sovereign immunity. 
Whether the discussion of Section 8(d) in Fidelity  was dicta or not, that does not change the 
fact that the Court’s reasoning still stands and is persuasive. 
For  purposes of historical perspective, it is noted that in 1985, Congress legislatively 
overruled Fidelity  by amending EAJA to include proceedings at boards of contract appeals. 
Appellant argues that the legislative history of the amendment, giving the boards authority 
to grant EAJA recovery, strongly suggests that Fidelity was wrongly decided by the Court. 
Appellant asserts that the Court had erred, because the Court had improperly sought to draw 
a distinction between availability of costs and fees to contractors at the COFC and at the 
boards.  Appellant  asserts that to the extent cases indicate that Section 8(d) does not grant 
boards monetary sanction authority, those decisions are wrong. I will not here engage in an 
analysis of the accuracy of appellant’s description of the legislative history as to the EAJA 
change.  That is because such an analysis is not necessary, nor would it be particularly 
helpful for this decision.  Even if one accepts appellant’s contention as being fully accurate 
as to the legislative history of the EAJA change, and moreover conclude, as appellant does, 
that the Court was wrong in not understanding that EAJA was intended to cover the boards, 
the general legal standard of requiring an express delegation, rather than relying on 
implication and inference, remains good law and the benchmark we must follow.  
Fidelity , however, does not exist in isolation. Since its issuance, numerous cases at 
our predecessor boards and at the Armed Services Board of Contract Appeals (ASBCA) have 
repeated that boards do not have jurisdiction to issue monetary sanctions for discovery 
abuses.  As will be noted below, most do not directly address the effect of Section 8(d).  The 
cases do, however, uniformly confirm the need for clear direction in the Congressional grant 
of authority. 
In Moore Mill & Lumber Co. , AGBCA 90-210-10, 91-1 BCA ¶ 23,484 (1990), the 
Department of Agriculture Board of Contract Appeals (AGBCA) specifically noted that prior 
authority to the contrary in Claude C. Wood Co. , AGBCA 79-176-1, et al., 82-2 
BCA ¶ 15,999, was implicitly overruled by Fidelity.   Prior to  Fidelity , the AGBCA had 
concluded that by virtue of CDA Section 8(d), the board had authority to grant attorney fees 
and costs to qualified litigants where the Government’s position was not substantially justified 

 
      
 
        
         
  
 
  
  
     
  
 
 
   
 
 
  
   
 
  
 
6 CBCA 95 
as provided in EAJA.  In Moore , the board stated that Fidelity implicitly overruled the board’s 
earlier holding.  Accordingly, the board expressly declined to hold that Section 8(d) of the 
CDA provided a vehicle for awarding EAJA costs and fees under 28 U.S.C. § 2412(a), 
notwithstanding the fact that the Court of Claims had the authority to provide that remedy. 
In Turbomach , ASBCA 30799, 87-2 BCA ¶ 19,756, the ASBCA addressed whether 
the assessment of attorney fees against the Government was available as a sanction tool in 
discovery.  The board stated, 
It is beyond dispute that the sovereign is immune from suit filed without its 
consent and that without statutory authorization, attorneys’ fees cannot be 
awarded against the United States. When sovereign immunity is held to be 
waived, such waiver cannot be implied but must be unequivocally expressed. 
United States v. Testan, 424 U.S. 392 (1976), Fidelity Construction Co. v. 
United States , 700 F.2d 1379 (Fed. Cir. 1983), cert. denied, 464 U.S. 826; 
Nibali v. United States , 225 Ct.Cl. 8, 634 F. 2d 494 (1980); NAACP v. Civiletti , 
609 F.2d 514 (D.C. Cir. 1979), cert. denied , 447 U.S. 922 (1980).  In order for 
this Board to have jurisdiction to award attorneys’ fees, Congress must 
expressly authorize the award of fees against the United States with a specific 
statute.  Alyeska Pipeline Service Co. v. Wilderness  Society , 421 U.S. 240 
(1975); Fidelity , supra . 
Thereafter, the ASBCA continued to find no authority for monetary sanctions.  See 
Analysas Corp ., ASBCA 54183, 04-1 BCA ¶ 32,629 (no authority to award costs and attorney 
fees on interlocutory motions, such as motion to strike); M.A. Mortenson Co. , ASBCA  52881, 
et al., 03-2 BCA ¶ 32,293 (no authority to impose monetary sanctions for conduct during 
discovery); E-Systems, Inc. , ASBCA 46111, 97-1 BCA ¶ 29,975, at 144,301 (no authority to 
impose monetary sanctions for Government failure to comply with board order);  Stemaco 
Products, Inc. , ASBCA 45469, 94-3 BCA ¶ 27,060, at 134,843 (no monetary sanction in 
discovery dispute). 
Southwest Marine, Inc. , ASBCA 39472, 94-1 BCA ¶ 26,487 (1993), merits specific 
comment, because there, in addition to agreeing with Fidelity , the ASBCA addressed the 
legislative history of the CDA as to breach claims and specifically rejected Southwest’s 
attempt to bootstrap sanctions through the language of Section  8(d).  In Southwest , the board 
discussed the fact that Congress included no language indicating an intent to establish uniform 
procedures between the court and board for handling discovery disputes and sanctions.  The 
board pointed out, rather, that Congress recognized that each forum was unique and would 
operate by its own rules. The conclusion in Southwest  and the ASBCA’s discussion as to the 
uniqueness of the available forums is consistent with my view.  Further, the ASBCA’s 

 
  
   
    
  
         
 
        
 
 
        
 
 
 
    
 
     
   
  
 
  
   
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conclusions in  Southwest are inconsistent with appellant’s argument that, through Section 
8(d), the COFC rules are essentially bootstrapped into the rules and procedures of the boards. 
If appellant’s position is correct, then that would essentially create a merger of rules between 
the COFC and the boards. There is no basis or authority suggesting that Congress intended 
that.  
In addition to the decisions of the ASBCA, civilian boards have also concluded that 
they did not have authority to grant monetary relief in motion or discovery disputes. It is 
noted that none of the cases cited to us, except for  Moore Mill & Lumber , discussed above, 
address an argument involving the scope of Section 8(d).   Shorthaul Trucking Co. , PSBCA 
1046, 84-1 BCA ¶ 17,012 (no authority found, but Section 8(d) not raised);  Time 
Contractors , J.V., DOT BCA 1669, et al., 86-3 BCA ¶ 19,318 (for costs for preparing a 
motion to strike, no authority under 28 U.S.C. § 1927).  Three cases,  C.S. Smith Training, 
Inc., DOT CAB 1273, 83-1 BCA ¶ 16,304;  Warwick Construction, Inc., GSBCA 6925, et al., 
83-2 BCA ¶ 16,663; and SEI Information Technology , VABCA 1478, 83-2 BCA ¶ 16,651, 
involved attempts to secure EAJA fees, and in disallowing the fees, the boards followed 
Fidelity . 
In A & B Limited Partnership v. General Services Administration, GSBCA 15208, 
05-1 BCA¶ 32,832 (2004), the GSBCA discussed the issue of authority to impose monetary 
sanctions.  The board said: 
Federal courts possess inherent authority to impose sanctions--including 
monetary sanctions--against parties and their attorneys in appropriate 
circumstances.  Chambers v. NASCO, Inc. , 501 U.S. 32, 45-46 (1991); 
Roadway Express, Inc. v. Piper , 447 U.S. 752, 766-67 (1980);  Alyeska Pipeline 
Service Co. v. Wilderness Society , 421 U.S. 240, 258-59 (1975).  A board of 
contract appeals is not a court, however, and therefore does not have all the 
inherent authority of a federal court.  SMS Data Products Group, Inc. v. Austin , 
940 F.2d 1514, 1517 (Fed. Cir. 1991); ViON Corp. v. United States , 906 F.2d 
1564, 1567 (Fed. Cir. 1990).  This is not to say that a board’s authority is 
necessarily less than a federal court’s; it is to say, however, that a board’s 
authority is different from such a court’s.  Sterling Federal Systems, Inc. v. 
Goldin , 16 F.3d 1177, 1186 (Fed. Cir. 1994).  Applying the teaching of the 
Court of Appeals for the Federal Circuit in the last three cited cases, we held 
in Integrated Systems Group [ , Inc. v. Department of the Treasury, GSBCA 
11336-C (11214-P), 95-1 BCA ¶ 27,308 (1994)] that we do not have a court’s 
inherent authority to impose monetary sanctions against a litigant.  95-1 BCA 
at 136,111. 

 
    
    
 
     
    
  
         
 
 
  
 
  
 
  
    
       
    
8 CBCA 95 
The fact that our Rule 118(b) allows us to impose “such . . . sanctions as the 
Board deems appropriate” cannot convey authority where inherent authority is 
not present.  This rule, like all our Rules of Procedure, was promulgated by the 
Board, see GSA Order OHR P 5440l.1 CHGE 386, ch 3, pt. 1, ¶ 3 (July 23, 
1993), so any authority contained in it derives from whatever authority we have, 
either through a grant from Congress or through inherent authority.  Congress 
has not empowered us to impose monetary sanctions.  Because we have no 
inherent authority to impose these sanctions, we cannot write or interpret a rule 
which permits their imposition. 
Id. at 162,445. 
There is no indication from the A & B  decision that the board had before it any 
argument as to 8(d).   Rather, the board addressed the arguments before it, which were that 
the board had inherent authority as a tribunal and that board rule 118(b) authorized monetary 
relief as a sanction.  
Recently, the Court of Appeals for the Federal Circuit had the opportunity to address 
the matter of monetary sanctions in the context of the Court of International Trade (CIT).  In 
Yancheng  Baolong Biochemical Products, Co. v. United States , 406 F.3d 1377 (Fed. Cir. 
2005), the  Federal Circuit discussed whether the CIT could issue a contempt citation and 
whether it was authorized to impose attorney fees as a sanction. The Federal Circuit  held that 
while the CIT might have authority to issue a contempt citation (a power boards do not have), 
the CIT lacked any clear waiver of sovereign immunity authorizing it to impose attorney fees 
as a sanction.  In arguing that the CIT had the authority, appellant emphasized that the Federal 
Circuit had concluded in other litigation that the COFC had such authority.  On that basis, 
plaintiff, Yancheng, argued that the CIT should have the same authority.  The Federal Circuit 
distinguished that court precedent, stating that the COFC’s rules were drawn in their entirety 
from the Federal Rules of Civil Procedure (FRCP).  Because the FRCP has the force and 
effect of a statute, so too did the COFC rules.  From that, the Federal Circuit concluded that 
the COFC had the authority to issue monetary sanctions.  The Federal Circuit  then noted that 
promulgation and adoption of the CIT rules were not comparable to promulgation and 
adoption of the COFC rules and therefore, the fact that the COFC had monetary sanction 
authority did not mean that the CIT did as well.  
Appellant and the FS see Yancheng  very differently.  Appellant focuses on the 
conclusion of the Federal Circuit that the COFC rules have essentially adopted the FRCP and 
that the court decision in Yancheng found that the COFC had sanction authority on that basis. 
The FS essentially says, “so what,” asserting that the power to sanction by the COFC does not 

 
   
        
     
  
   
  
   
  
 
  
 
  
     
   
 
  
       
9 CBCA 95 
confer the same authority on the boards absent some specific direction setting out that 
authority.    
Appellant has pointed to the decision of the AGBCA in Alisa Corp ., AGBCA 84-193­
1, 86-3 BCA ¶ 19,139, and asserts that it remains controlling law. There the AGBCA stated 
that it had authority to order payment of costs and fees when a party failed to comply with 
discovery obligations. It noted that such action was particularly appropriate when a party had 
demonstrated disregard of the discovery process.   Appellant cites the board to language from 
the decision.  The actual and more complete quote is set out below: 
The Contract Disputes Act in Section 8(d) gives Boards authority to grant any 
relief that would be available to a litigant asserting a contract claim in the 
United States Claims Court.  Although Board Rule 33 is not specific as to costs 
we conclude under appropriate circumstances a Board could order payment of 
such costs by the party failing to comply with its order.  
Id. at 96,742.  Appellant says that the above language establishes that the CBCA, the 
successor Board  to the AGBCA, has authority to use monetary sanctions for discovery.   
The AGBCA decision, however, has to be read in context of the facts and later events. 
First, the board did not find that sanctions were warranted under the facts.  The board was thus 
referring to some future situation.  Second, since the board issued its decision in Alisa , I know 
of no instances where the AGBCA used the monetary sanction authority referred to. 
Additionally, sovereign immunity was not an issue in Alisa , since the sanction was to be 
applied against the appellant and not the Government.  Finally, to the extent Alisa  held that 
the AGBCA had authority, I find that statement legally incorrect and contrary to the current 
state of the law. 
Finally, and in addition to its other arguments, appellant relies upon  Lane v. Pena , 518 
U.S. 187 (1996).  Appellant asserts that Lane stands for the proposition that Congress may 
waive sovereign immunity for the award of costs and attorney fees in one statute by making 
general reference to the remedies available in another statute that provides for recovery of 
costs and attorney fees.  Appellant argues that Congress did that with Section 8(d) of the 
CDA.  I do not find the situations similar. 
In Lane, the Court considered Section 504(a) of the Rehabilitation Act of 1973, which 
prohibits discrimination on the basis of disability under any program or activity conducted by 
any Executive agency. 518 U.S. at 189. Section 505(a)(2) of the Rehabilitation Act provides 
a remedy for violation of Section 504 as follows: 

 
     
     
  
  
        
  
    
     
    
 
       
      
       
10 CBCA 95 
The remedies, procedure, and rights set forth in title VI of the Civil Rights Act 
of 1964 shall be available to any person aggrieved by any act or failure to act 
by any recipient of Federal assistance or Federal provider of such assistance 
under section 504(a).  
The language in the CDA relied upon by appellant, “may grant any relief,” is much 
broader and clearly not as specific as language in the Rehabilitation Act.  Appellant takes the 
terminology  “general reference” a bit far in attempting to equate the “any relief” language 
in the CDA to the language in Lane authorizing relief.  The reference in Lane is specific; the 
wording in Section 8(d) is not.   
In addition to those arguments presented by appellant that I have specifically addressed 
in this decision, I have also considered the other arguments and contentions put forth by 
appellant in support of its request for monetary sanctions.  I do not find any of those 
arguments controlling or convincing. 
In summary, the Board does not have available the ability to issue monetary sanctions 
against the Government for discovery abuses. It is of note, however, and without suggesting 
the final result, that the Board does have authority under EAJA to award attorney fees.  If 
appellant were to prevail and if it met the criteria for reimbursement through EAJA, the hours 
associated with discovery might be eligible for inclusion in an award.  Recovery in that 
context is, of course, premature, since the appeal has not yet reached a point where it has been 
favorably decided for either party. 
For almost twenty-five years, the ASBCA and various civilian boards of contract 
appeals have consistently disclaimed authority to issue monetary sanctions.  I recognize that 
most of those cases have not directly addressed the role of Section 8(d).  However, several 
have, and the consistent conclusions that the boards do not have such authority should not be 
ignored.  That precedent when combined with the language in Fidelity  makes it clear that the 
Board does not have authority to award monetary sanctions in this case.  Moreover, for this 
Board to conclude that it has authority to issue monetary sanctions, the Board would have to 
make various interpretations and rely on inferences and implications. There is simply no clear 
direction providing monetary sanction authority. In the absence of such direction, the Board 
does not have authority to issue monetary sanctions.    

 
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11 CBCA 95 
Decision
 
Appellant’s MOTION FOR COSTS AND ATTORNEY FEES is DENIED .
 
HOWARD A. POLLACK 
Board Judge