RECONSIDERATION DENIED:  June 7, 2023
CBCA 7492-R
JOHN DOUGLAS BURKE,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
John Douglas Burke, pro se, Rockville, MD.
Pamela R. Waldron and Ethan Chae, Office of the General Counsel, Department of
Health and Human Services, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), LESTER, and O’ROURKE.
LESTER, Board Judge.
Appellant, John Douglas Burke, has requested reconsideration of the Board’s decision
dated March 10, 2023 (John Douglas Burke v. Department of Health & Human Services,
CBCA 7492, 23-1 BCA ¶ 38,304), in which we granted the motion of the National Institutes
of Health (NIH) to dismiss Mr. Burke’s appeal for failure to state a claim.  We held in our
prior decision that, under the terms of Mr. Burke’s contracts and the facts as alleged, the
contracts at issue were not personal services contracts that entitled Mr. Burke to receive the
same pay and benefits as federal employees.  We deny Mr. Burke’s motion for
reconsideration.


CBCA 7492-R 2
Discussion
I. Standard of Review
“A motion for reconsideration must be based on the acquisition of newly discovered
evidence or the showing of legal error.”  Yates-Desbuild Joint Venture v. Department of
State, CBCA 3350-R, et al., 18-1 BCA ¶ 36,959, at 180,084 (2017) (quoting Sims Paving
Corp., DOT BCA 1822, 91-2 BCA ¶ 23,733, at 118,868).  Such a motion “is improper when
based upon ‘the sole ground that one side or the other is dissatisfied with the conclusions
reached by the [tribunal], otherwise the losing party would generally, if not always, try his
case a second time, and litigation would be unnecessarily prolonged.’”  AT&T Corp. &
Subsidiaries v. United States, 63 Fed. Cl. 209, 211-12 (2004) (quoting Roche v. District of
Columbia, 18 Ct. Cl. 289, 290 (1883)).  The party requesting reconsideration “bears the
burden of establishing that the Board’s decision contains substantive errors that are
substantial enough to warrant relief.”  SRM Group, Inc. v. Department of Homeland Security,
CBCA 5194-R, et al., 21-1 BCA ¶ 37,869, at 183,885, aff’d, No. 2021-2104, 2022 WL
1089228 (Fed. Cir. Apr. 12, 2022).
II. Mr. Burke’s Grounds for Reconsideration
A. Alleged Errors and Misinterpretations of Fact in the Decision
Mr. Burke first argues that the factual discussion in the Board’s decision contains
errors and misinterpretations of fact.  He asserts that, although the Board represented in its
decision that Mr. Burke had provided the price quotes that were incorporated into purchase
orders that NIH’s National Human Genome Research Institute (NHGRI) issued, the Board
failed to understand that NHGRI invariably had prescribed the rates in those price quotes and
“instructed [him] what to enter and when to submit.”  Appellant’s Motion for
Reconsideration at 1.  He alleges that NHGRI provided no “room for [him] to object to the
original contract’s terms,” as sparse as they were, and that NHGRI had a “greater level of
control . . . of these matters than perhaps the Board originally understood.”  Id. at 2.
Ultimately, it makes no difference who proposed the prices that were incorporated
into Mr. Burke’s contracts.  There is no dispute that those prices were a part of the contracts
that Mr. Burke performed, and Mr. Burke never alleges that, before submitting his claim to
the contracting officer, he at any time objected to those contract prices.  See John Douglas
Burke, 23-1 BCA at 185,972 (“Normally, if a contractor is aware of a defect in a contract’s
terms prior to award but says nothing to the Government about it, he cannot raise that defect
for the first time after performance is complete and expect to increase his contract price.”). 
An allegation of a factual error in a decision that is irrelevant to the ultimate disposition of
the motion to dismiss provides no basis for reconsideration.  Professional Carpet Service,

CBCA 7492-R 3
GSBCA 6411, et al., 82-2 BCA ¶ 15,978, at 79,236; see Walber Construction Co., HUD
BCA 79-385-C17, et al., 1982 WL 175910 (Sept. 2, 1982) (“If the ground for reconsideration
will only have a collateral effect and will not result in a change in the decision, the motion
will be denied.”).  The alleged factual errors that Mr. Burke describes do not affect the result
here and provide no grounds for reconsideration.
Mr. Burke also complains about descriptions in counsel for NIH’s briefing to the
Board about the extent of his involvement in drafting and submitting statements of work
(SOWs), statements of need (SONs), and other documents.  Appellant’s Motion for
Reconsideration at 2.  Mr. Burke complains that NIH used its false descriptions of his
involvement as a basis for asking the Board to find the SOWs and SONs to be incorporated
into Mr. Burke’s contracts.  Id.  Because those factual allegations “could have influenced the
Board into believing that [Mr. Burke] was privy to the existence and contents of these
documents,” he asserts, id., he needs discovery, including depositions of NIH employees.
Yet, in our prior decision, we expressly held that, in the circumstances of this case,
we could not resolve on NIH’s motion to dismiss for failure to state a claim the issue of
whether the SOWs or SONs were incorporated into Mr. Burke’s contracts.  John Douglas
Burke, 23-1 BCA at 185,971.  We also held that resolution of that issue was unnecessary to
the disposition of NIH’s motion and found that, even if (as Mr. Burke argued) the SOWs and
SONs were not incorporated into the contracts, Mr. Burke could not prevail on his claim. 
Id. at 185,971-74.  In these circumstances, Mr. Burke’s complaint about NIH’s descriptions
of his SOW and SON activity is irrelevant to our decision and provides no basis for
reconsideration.
B. Ambiguity of the Contracts
Although Mr. Burke titles the next section of his reconsideration motion as “Latent
Ambiguity of the Contract,” we see nothing in that section addressing ambiguities that were
not reasonably noticeable when the contracts were awarded.  See Interwest Construction v.
Brown, 29 F.3d 611, 616 (Fed. Cir. 1994) (“By definition, an ‘obvious void’ or glaring
omission can never be a latent ambiguity.”).  Instead, Mr. Burke, alleging patent ambiguities,
asserts that he “has consistently maintained throughout these proceedings that the express
contract is so minimal in terms of provisions that it is rendered meaningless, or at least
ambiguous in the extreme,” and that it is therefore “void or voidable.”  Appellant’s Motion
for Reconsideration at 2.  He asserts that the Board “erred in its assessment of the express
contract by, to put it simply, finding so much in so little.”  Id. at 3.  Here, Mr. Burke simply
disagrees with the manner in which the Board interpreted his contract.  That is not a viable
basis for a reconsideration request.  URS Energy & Construction, Inc. v. Department of
Energy, CBCA 2260-R, 12-2 BCA ¶ 35,147, at 172,522.

CBCA 7492-R 4
He also asserts that he needs discovery to determine whether “one or more SOWs or
SONs may each have been used for multiple purchase orders, despite the underlying projects
differing.”  Appellant’s Motion for Reconsideration at 3.  For purposes of determining
whether Mr. Burke’s contracts were personal services contracts, however, it ultimately does
not matter if NIH re-used the same SOW or SON language in contracts for other projects. 
The issue before the Board was the interpretation of Mr. Burke’s contract, not of contracts
that NIH might have with others.
C. Alleged Level of Supervision
Crucial to Mr. Burke’s opposition to NIH’s motion to dismiss was his argument that
the degree of supervision that NHGRI exercised over him and his work established that his
contracts were illegal personal services contracts.  We rejected that argument, finding,
consistent with the Court of Appeals for the Federal Circuit’s decision in Lee v. United
States, 895 F.3d 1363 (Fed. Cir. 2018), that the actual terms of the written contracts
themselves did not impose a contractual level of supervision sufficient to create a personal
services contract.  John Douglas Burke, 23-1 BCA at 185,973.  In his motion for
reconsideration, Mr. Burke complains that the evidence before the Board in considering
NIH’s motion to dismiss was “too scant and the purchase orders too ambiguous to arrive at”
the conclusion that the Board reached.  Appellant’s Motion for Reconsideration at 4. 
“Reconsideration is not granted when a party reargues facts and theories upon which the
Board has previously ruled.”  Power Wire Constructors v. Department of Energy, CBCA
2057-R, 12-2 BCA ¶ 35,165, at 172,559.
In his motion, Mr. Burke adds a new argument:  that, as “was very recently brought
to [his] attention,” he actually “supervised and directed federal employees routinely” in such
things as breeding animals, cryopreserving embryos, euthanizing animals, and testing
samples, something that he believes somehow shows that he was serving under a personal
services contract with NHGRI.  Appellant’s Motion for Reconsideration at 4-5.  In support,
he provides an email from 2019 that he recently located which allegedly shows his
supervisory direction to NHGRI employees to “[p]lease keep and breed” five particular
animals.  Whatever evidentiary value the 2019 email brings, it is too late to add new evidence
that was previously available (had the appellant looked in his own email account for it) and
new arguments on a motion for reconsideration.  Beyley Construction Group Corp. v.
Department of Veterans Affairs, CBCA 5-R, et al., 08-1 BCA ¶ 33,784, at 167,205.
The remainder of Mr. Burke’s motion for reconsideration questions our interpretation
and application of the Federal Circuit’s decision in Lee, which provides no basis for
reconsideration.

CBCA 7492-R 5
Decision
Mr. Burke’s request for reconsideration is DENIED.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
    Erica S. Beardsley             Kathleen J. O’Rourke    
ERICA S. BEARDSLEY KATHLEEN J. O’ROURKE
Board Judge Board Judge