DISMISSED FOR LACK OF JURISDICTION:  August 31, 2009 
CBCA 1193 
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, 
Appellant, 
v. 
DEPARTMENT OF ENERGY, 
Respondent. 
Keith M. Harper of Kilpatrick Stockton LLP, Washington, DC; and R. Lee Mann, III 
of Kilpatrick Stockton LLP, Atlanta, GA, counsel for Appellant. 
Douglas N. Harness, Office of General Counsel, Western Area Power Administration, 
Department of Energy, Lakewood, CO, counsel for Respondent. 
Before Board Judges GILMORE , BORWICK, and VERGILIO . 
BORWICK, Board Judge. 
Respondent moves to dismiss this appeal for lack of jurisdiction under the Contract 
Disputes Act (CDA), 41 U.S.C. §§ 601-613 (2006), because the identical contract case is 
pending in an earlier-filed action in the United Stated Court of Federal Claims.  Appellant 
resists the motion.  Appellant’s opposition is not well founded and we dismiss this appeal. 
Background 
On May 16, 2008, appellant filed a civil action in the United States Court of Federal 
Claims seeking redress on a contracting officer’s denial of its claim.  On May 19, 2008, 
appellant filed an appeal at this Board seeking $9,511,372 from respondent for continuing 
use and occupation of appellant’s easement and right-of-way that allegedly expired March 

 
 
    
 
  
   
  
 
 
    
  
 
     
   
  
 
 
 
  
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30, 2000.  Appellant anticipated that the United States would file a motion in the Court of 
Federal Claims arguing that the claim was not cognizable under the CDA.  In its filing at the 
Board, appellant explained that it filed here “to protect itself in the event that it is determined 
for any reason that the Court of Federal Claims does not have jurisdiction over the claim.” 
Appellant requested that the Board stay proceedings “pending a decision by the Court of 
Federal Claims that it has such jurisdiction.” 
On June 3, 2008, the Board granted a stay of this appeal pending the court’s decision 
on the United States’s anticipated jurisdictional motion, and requested that the parties submit 
a status report to the Board, shortly after the court ruled on the defendant’s motion. 
The United States did submit a motion to dismiss the litigation in the Court of Federal 
Claims, for lack of jurisdiction, arguing that the CDA did not apply because the dispute over 
the easement and right of way concerned a procurement of “real property in being” and thus 
was barred by 41 U.S.C. § 602(a).  Recently the court denied the defendant’s motion to 
dismiss, holding that the claim was cognizable under the CDA.  Salt River Pima-Maricopa 
Indian Community v. United States , 86 Fed. Cl. 607 (2009).  The court held that the “other 
than real property in being” language of the CDA did not bar CDA jurisdiction because the 
grant of the easement and right of way was the creation of a new property interest, not the 
acquisition of an existing property interest.  Id. at 613. 
After the issuance of the decision by the Court of Federal Claims, the Board requested 
briefs from the parties as to whether the Board appeal should not be dismissed under the 
CDA’s “election doctrine.”  Respondent filed its motion to dismiss, which appellant opposed. 
Appellant says that the Board should not dismiss the appeal, but indefinitely suspend it, 
because the United States Court of Appeals for the Federal Circuit might sua sponte 
determine that the Court of Federal Claims erred in denying the United States’ motion to 
dismiss.  
Discussion 
The election doctrine provides that: 
Once a contractor makes a binding election under the Election Doctrine to 
appeal the contracting officer’s adverse decision to the appropriate board of 
contract appeals, that election must stand and the contractor can no longer 
pursue its claim in the alternate forum.  Under the Election Doctrine, the 
binding election of forums is an ‘either-or’ alternative, and, as such, does not 
provide a contractor with dual avenues for contesting a contracting officer’s 
adverse decision. 

 
       
                 
     
     
    
 
    
 
 
   
   
  
      
 
     
  
  
 
   
3 CBCA 1193 
National Neighbors, Inc. v. United States , 839 F.2d 1539, 1542 (Fed. Cir. 1988).  Of course, 
here, appellant filed first in the United States Court of Federal Claims, and thus, under the 
election doctrine, is to be deemed to have elected to proceed in that forum.  Bonneville 
Associates v. United States , 43 F.3d 649, 653 (Fed. Cir. 1994).  
Appellant cites States Roofing Corp. v. United States , 70 Fed. Cl. 299 (2006), for the 
proposition that the Board should maintain this appeal until it is clear that the United States 
Court of Appeals for the Federal Circuit will not sua sponte overturn the court’s decision, i.e. 
until jurisdiction has been definitively asserted or declined.  Appellant’s Opposition to 
Respondent’s Motion to Dismiss at 1-2.  The case does not support the proposition for which 
appellant cites it.  In States Roofing the court declined to apply the election doctrine because 
the elected forum--the Armed Services Board of Contract Appeals--had not determined the 
timeliness of the appeal before that Board.  States Roofing, 70 Fed. Cl. at 301.  There the 
court refused to apply the election doctrine because “the board has not yet determined 
whether the  appeal before it is timely.”  Id. 
There was no suggestion in States Roofing that the court would overlook the election 
doctrine and keep the case on its docket until the Court of Appeal had reviewed the ruling 
or until the ruling became final through a non-appeal.  Indeed, such a suggestion is contrary 
to the decision in National Neighbors , which plainly stated that, in cases where the elected 
forum’s jurisdiction is questioned, the election doctrine is triggered by the decision of that 
tribunal (in that case the board of contract appeals) that it possessed jurisdiction to decide the 
case.  National Neighbors , 839 F.2d at 1543.  
Appellant has also filed suit in a United States district court, raising trespass claims. 
Appellant was worried about the effect of 28 U.S.C. § 1500 on its litigation in the Court of 
Federal Claims.
1 
The presence of another suit in a United States district court does not change the result 
here.  First, respondent represents that it will not file a motion to dismiss for lack of 
jurisdiction the Court of Federal Claims’ litigation based upon the pendency of the district 
court suit.  Respondent’s Motion to Dismiss at 3.  Second, the district court has ruled that the 
1 The statute provides: “The United States Court of Federal Claims shall not have 
jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending 
in any other court any suit or process against the United States or any person who, at the time 
when the cause of action alleged in such suit or process arose, was, in respect thereto, acting 
or professing to act, directly or indirectly under the authority of the United States.”  

  
 
 
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4 CBCA 1193 
two suits present different claims. Salt River Pima-Maricopa Indian Community v. United 
States , D.C. Ariz. No. CV-08-01005-PHX-ROS (D.C. Ariz. Oct. 24, 2008).  Third, the Court 
of Federal Claims has determined that it has jurisdiction, a determination that triggers the 
election doctrine, regardless of the pendency of a third suit in a district court.  
Decision 
The appellant’s appeal is barred by the election doctrine.  Respondent’s motion to 
dismiss is granted, and the appeal is DISMISSED FOR LACK OF JURISDICTION . 
ANTHONY S. BORWICK 
Board Judge 
We concur: 
BERYL S. GILMORE JOSEPH A. VERGILIO 
Board Judge Board Judge