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In the United States Court of Federal Claims 

No. 14-647C 

(Filed: February 23, 2015) 

RUDOLPH AND SLETTEN, INC., 

 Plaintiff, 

v. 

THE UNITED STATES, 

 Defendant. 

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Contract Disputes Act (CDA), 41 

U.S.C. §§ 7101-09; Motion to 

Dismiss, Rule 12(b)(1); Motion for 

Summary Judgment, Rule 56; 

Motion Remand to the Contracting 

Officer, 41 U.S.C. § 7103(f)(5); 

Deemed Denial of a Claim. 

Nomi L. Castle, Matthew J. Luce, Marian K. Selvaggio, Castle & 

Associates, Beverly Hills, California, for plaintiff. 

A. Bondurant Eley, Trial Attorney, Joyce F. Branda, Acting Assistant 

Attorney General, Robert E. Kirschman, Jr., Director, Steven J. Gillingham, 

Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, Washington, D.C., for defendant. 

MEMORANDUM OPINION AND ORDER 

I. INTRODUCTION

Plaintiff, Rudolph and Sletten, Inc. (“R&S”), brought this action pursuant to 

the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101–09 (“CDA”). The 

government moved to dismiss R&S’s complaint, or alternatively for summary 

judgment, for lack of subject-matter jurisdiction pursuant to Rules 12(b)(1) and 56 

of the Rules of the United States Court of Federal Claims (“RCFC”), arguing that 

there has been neither an actual nor a deemed final decision by the contracting 

officer. In the alternative, the government moves for remand of the case to the 

contracting officer for a final decision. For the reasons set forth below, the 

government’s motion to dismiss, or alternatively for summary judgment, is 

DENIED. The government’s motion in the alternative for remand of this case to 

the contracting officer for a final decision is GRANTED. 
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II. FACTUAL AND PROCEDURAL BACKGROUND1

The dispute in this case arises out of a government contract awarded to R&S 

to build the Southwest Fisheries Science Center Replacement Headquarters and 

Laboratory in La Jolla, California (“La Jolla Laboratory”). 

On May 3, 2010, the United States Department of Commerce, National 

Oceanic and Atmospheric Administration (“NOAA”), awarded R&S Contract No. 

AB1330-10-CN-0114 to construct the La Jolla Laboratory. Compl. at Ex. A. 

On August 20, 2013, R&S submitted a certified claim (“Claim 1”) to 

NOAA’s contracting officer (“the contracting officer”) seeking a compensable 

contract time extension and $26,809,003 as compensation for costs due to alleged 

government-caused delay and disruption, additional consultant costs, and extra 

work undertaken by R&S and its subcontractors. Compl. at Ex. B. NOAA 

received R&S’s certified claim on August 23, 2013. Compl. at Ex. C. 

On October 21, 2013, the contracting officer wrote to R&S advising that: 

In accordance with FAR 52.233-1(e), the Contracting Officer’s final 

decision, or a date by which a decision will be made, must be 

provided to your firm. Due to the complexity and extensive nature of 

your claim, we anticipate a final Contracting Officer’s decision to be 

issued 9 months from the date of this letter. 

App. to Def. Mot. at 19. 

On October 30, 2013, R&S submitted a second certified claim (“Claim 2”) 

to the contracting officer. App. to Def. Mot. at 1-18. This claim sought an 

additional $2,600,861 for delay-related costs and unresolved Requests for Contract 

Modifications. App. to Def. Mot. at 7. 

On November 4, 2013, R&S wrote to the contracting officer acknowledging 

receipt of the October 21, 2013 letter, but stating that the nine-month extension to 

review Claim 1 was excessive and unreasonable. App. to Def. Mot. at 20. In 

addition, R&S requested either a detailed explanation for the delay or a work plan. 

 

1

 The facts recounted in this Memorandum Opinion and Order are taken from the plaintiff’s 

complaint cited in this Memorandum Opinion and Order as (“Compl. at ___”), the defendant’s 

dispositive motion (“Def. Mot. at __”), plaintiff’s opposition thereto (“Pl. Opp. at __”), 

defendant’s reply (“Def. Rep. at __”), and the appendices to the parties’ submissions (“App. to 

___”). Except where otherwise noted, the facts recited here are undisputed. 
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Id. The contracting officer responded on November 8, 2013, explaining the reason 

for the nine-month delay and providing R&S with a timeline for reaching a final 

decision on Claim 1 by July 15, 2014. App. to Def. Mot. at 21-22. 

On January 6, 2014, R&S filed its first lawsuit arising under the La Jolla 

contract. Rudolph & Sletten, Inc. v. United States, No. 14-14C (Fed. Cl. Jan. 6, 

2014) (“R&S I”). On May 6, 2014, the government filed a dispositive motion in 

R&S I. That motion is fully briefed and is separately pending before the Court. 

On July 8, 2014, the contracting officer informed R&S that a final decision 

on Claim 1 would not be reached by July 15, 2014 as originally estimated by the 

government, and that, instead, a final decision would be forthcoming on March 15, 

2015. App. to Def. Mot. at 40-41. The contracting officer also provided R&S with 

the following schedule for the resolution of Claim 1: 

July 31, 2014: Approximately 35 PCOs Requiring a 

Technical Merit Letter; 

August 31, 2014: Approximately 35 PCOs reassessing 

previously issued unilateral modifications 

and directives; 

October 15, 2014: Approximately 35 PCOs reassessing 

previously issued unilateral modifications 

and directives; 

November 15, 

2014: 

Approximately 35 PCOs reassessing 

previously issued unilateral modifications 

and directive; 

January 15, 2015: Approximately 35 PCOs pending 

evaluation; 

February 27, 

2015: 

Approximately 25 PCOs pending 

evaluation. 

App. to Def. Mot. at 41. R&S filed the present action regarding Claim 1 on 

July 23, 2014. 

The government moves to dismiss this case, or alternatively for summary 

judgment, for lack of jurisdiction, arguing that R&S failed to obtain a final 

decision from the contracting officer before filing its complaint. See generally 

Def. Mot. Alternatively, the government requests that the Court stay and remand 

this case to the contracting officer for a final decision, pursuant to 41 U.S.C. § 

7103(f)(5). Id. at 19. 
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III. ANALYSIS 

A. Legal Standards 

Whether this Court possesses jurisdiction to decide the merits of a case is a 

threshold matter. Copar Pumice Co., Inc. v. United States, 112 Fed. Cl. 515, 527 

(2013) (citing PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1364 (Fed. Cir. 

2007)); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). 

Deciding a motion to dismiss “starts with the complaint, which must be wellpleaded in that it must state the necessary elements of the plaintiff’s claim, 

independent of any defense that may be interposed.” Holley v. United States, 124 

F.3d 1462, 1465 (Fed. Cir. 1997). As a case cannot proceed if a court lacks 

jurisdiction to hear it, the plaintiff bears the burden of establishing subject-matter 

jurisdiction and must do so by a preponderance of the evidence. Arbaugh v. Y & H 

Corp., 546 U.S. 500, 514 (2006); M. Maropakis Carpentry, Inc. v. United States,

609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing Reynolds v. Army & Air Force Exch. 

Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). 

If the Court finds it lacks subject-matter jurisdiction, it must dismiss the 

complaint. Arbaugh, 546 U.S. at 514. In considering a motion to dismiss for lack 

of jurisdiction, the Court must “view the alleged facts in the complaint as true, and 

if the facts reveal any reasonable basis upon which the non-movant [might] prevail, 

dismissal is inappropriate.” Palafox St. Associates, L.P. v. United States, 117 Fed. 

Cl. 324, 327 (2014) (quoting Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 

(Fed. Cir. 2002)). The Court may also look beyond the pleadings and ‘“inquire 

into jurisdictional facts’ to determine whether jurisdiction exists.” Estes Express 

Lines v. United States, 108 Fed. Cl. 416, 420 (2013), rev’d on other grounds, 739 

F.3d 689 (Fed. Cir. 2014) (citing Rocovich v. United States, 933 F.2d 991, 993 

(Fed. Cir. 1991)). 

B. The Contract Disputes Act 

The Tucker Act, 28 U.S.C. § 1491(a)(1), grants the United States Court of 

Federal Claims jurisdiction “to render judgment upon any claim against the United 

States founded either upon the Constitution, or any Act of Congress or any 

regulation of an executive department, or upon any express or implied contract 

with the United States, or for liquidated or unliquidated damages in cases not 

sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act further provides that 

the Court “shall have jurisdiction to render judgment upon any claim by or against, 

or dispute with, a contractor arising under section 7104(b)(1) of title 41 [the 

Contract Disputes Act].” Id. at § 1491(a)(2). 
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For the Court to have subject-matter jurisdiction to hear a dispute under the 

CDA, the plaintiff must meet two prerequisites: (1) submit a proper claim to the 

relevant contracting officer, which must be properly certified if the amount 

requested is above $100,000, and (2) obtain a final decision on that claim. 41 

U.S.C. § 7103(a); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 

1995). 

Under the CDA, a contractor may obtain either an actual or a deemed final 

decision on the claim. Claude E. Atkins Enters., Inc. v. United States, 27 Fed. Cl. 

142, 143 (1992). For claims over $100,000, the CDA provides that the contracting 

officer shall, within 60 days of receipt of the submitted certified claim, “(A) issue a 

decision; or (B) notify the contractor of the time within which a decision will be 

issued.” 41 U.S.C. § 7103(f)(2). The decision must be “issued within a reasonable 

time,” which is calculated by “taking into account such factors as the size and 

complexity of the claim and the adequacy of information in support of the claim 

provided by the contractor.” 41 U.S.C. § 7103(f)(3). If the contracting officer 

denies the claim within the required time period, that claim is actually denied. Id. 

However, a failure to issue a decision within the required time “is deemed to be a 

decision by the contracting officer denying the claim.” 41 U.S.C. § 7103(f)(5). A 

denial, actual or deemed, authorizes an “appeal or action on the claim as otherwise 

provided in [the CDA]. The tribunal concerned may, at its option, stay the 

proceedings of the appeal or action to obtain a decision by the contracting officer.” 

Id. 

C. The Court Possesses Jurisdiction Over Plaintiff's Claim 

The parties do not dispute that R&S properly submitted a certified claim to 

the contracting officer and that the contracting officer did not issue a final decision 

on the claim by the government’s original deadline. Def. Mot. at 13; Pl. Opp. at 8. 

Accordingly, the question presented by this case is whether the government’s 

failure to issue a decision by the original deadline constitutes a deemed denial of 

R&S’s claim under the CDA. 41 U.S.C. § 7103(f)(5). For the reasons set forth 

below, the passage of the government’s July 15, 2014 deadline to decide plaintiff’s 

claim constitutes a deemed denial of that claim. As a result, this Court has subjectmatter jurisdiction to consider R&S’s claim. 

The government argues in its motion that the Court lacks subject-matter 

jurisdiction to consider R&S’s claim because there has not been a deemed denial of 

the claim by the contracting officer. Specifically, the government maintains that 

the contracting officer in this case properly and timely extended the deadline for 

issuing a final decision on R&S’s claim until March 15, 2015, once the 
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government determined that it would not meet its original deadline. Def. Mot. at 

13-14. The government further maintains that because the new deadline set by the 

contracting officer is reasonable, R&S’s claim before this Court is premature and 

jurisdictionally barred. Def. Mot. at 13. For the reasons discussed below, the 

Court disagrees. 

The CDA contains specific requirements regarding the timing for reaching a 

decision on a claim. Section 7103(f)(2) of the CDA provides that: “A contracting 

officer shall, within 60 days of receipt of a submitted certified claim over 

$100,000-- (A) issue a decision; or (B) notify the contractor of the time within 

which a decision will be issued.” 41 U.S.C. § 7103(f)(2) (emphasis added). The 

plain language of the statute requires that the contracting officer either make a 

decision within 60 days, or set a firm deadline for issuing a final decision within 60 

days of receiving a claim. Id.

2

 

Although the meaning of section 7103(f)(2) has not often been addressed by 

the courts, the relevant case law supports the view that section 7103(f)(2) gives the 

government the right to extend the deadline for issuing a final decision only once 

and that the deadline must be set during the initial 60-day period.3

 In Claude E. 

Atkins, the Court held that a contractor may “treat the passage of the due date 

specified in the initial sixty days as a deemed decision even if the contracting 

officer attempts to further extend the due date.” Claude E. Atkins, 27 Fed. Cl. at 

145. Similarly, the United States District Court for the District of Columbia 

recently held that a contracting officer is permitted only a single extension under 

the CDA. Tuba City Reg’l Health Care Corp. v. United States, et al., No. 13–639, 

 

2

 This reading of section 7103(f)(2) is reinforced by the statute’s remaining provisions: Section 

7103(f)(3) places a reasonableness limitation on section 7103(f)(2)(B) and prevents the 

contracting officer from setting a final decision date far in the future. If the contracting officer 

does set an unreasonable decision date, section 7103(f)(4) allows the contractor to ask a court to 

direct the contracting officer to issue a decision within a specified period of time. 41 U.S.C. § 

7103(f)(4). If the contracting officer fails to comply with any of the timeliness provisions in the 

CDA, section 7103(f)(5) permits the contractor to interpret the delay as a deemed denial. 41 

U.S.C. § 7103(f)(5). 

3

 The Court has also addressed this issue in dicta on two other occasions: In AFD Fund v. United 

States, 61 Fed. Cl. 540, 542 n.1 (2004), the Court found that a plaintiff may treat “the passage of 

[the final decision date set by the contracting officer] without a final decision as a deemed 

denial . . . . .” Similarly in Boeing Co. v. United States, 26 Cl. Ct. 257, 259-60 (1992), the Court 

found that a fixed final decision date is required and if the “claim is substantial and will require a 

long period of time to address, then the contracting officer's only option is to fix a date far 

enough into the future to assure a complete evaluation.” 
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2014 WL 1648215 (D.D.C Apr. 25, 2014). In Tuba City, the district court 

confronted facts similar to this case: the contracting officer in that case extended 

the deadline for a final decision multiple times and the contractor filed an action in 

court arguing that its claim had been deemed denied. Tuba City, 2014 WL 

1648215, at *2. In that case, the court determined that the CDA allows the 

contracting officer to pick its own deadline beyond the 60-day period. Id. at *3. 

But, “[o]nce picked . . . that deadline is firm” and failure to meet that deadline 

results in a deemed denial of the claim. Id. 

The Claude E. Atkins and Tuba City decisions are instructive here. In this 

case, the contracting officer set a deadline of July 15, 2014 for issuing a final 

decision on R&S’s claim. That deadline passed without the contracting officer 

reaching a decision. Although the contracting officer did seek to extend the 

deadline again before the first extension expired, no language in the CDA provides 

the government with the right to a second extension. As a result, R&S may treat 

the contracting officer’s failure to reach a decision by the government’s July 15, 

2014 deadline as a deemed denial of its claim. See 41 U.S.C. § 7103(f)(2); Claude 

E. Atkins, 27 Fed. Cl. at 145. 

The government incorrectly argues that the contracting officer had the right 

to further extend the deadline for issuing a final decision in this case because 

R&S’s claim is complex. Def. Mot. at 16-17. Section 7103(f)(3) of the CDA 

requires that, at the outset, the government calculate the deadline for issuing a final 

decision “taking into account such factors as the size and complexity of the claim 

and the adequacy of information in support of the claim provided by the 

contractor.” 41 U.S.C. § 7103(f)(3). Moreover, in Claude E. Atkins, the Court 

held that even if the claim is complex, the contracting officer “must choose, within 

the sixty days, a reasonable due date that he will be able to meet.” Claude E. 

Atkins, 27 Fed. Cl. at 146. There is “no exception to the § 7103(f) timing 

requirements for complex claims.” Tuba City, 2014 WL 1648215, at *3. For this 

reason, when faced with a complex claim, the contracting officer here should have 

picked a deadline that afforded plenty of time to evaluate R&S’s claim. Id. 

The government also relies upon several Board of Contract Appeals cases to 

support its argument that the contracting officer properly extended the deadline for 

a final decision on R&S’s claim.4

 But, a plain reading of section 7103(f)(2) 

 

4

 In Appeal of Robert Augustine & Sons, Inc., VABCA No. 3079, 1989 WL 146843 (V.A.B.C.A. 

Nov. 22, 1989), the Veterans Board of Contract Appeals (“VABCA”) held that the claim in the 

case was deemed denied, but stated, in dictum, that the contracting officer need only provide a 

“good faith estimate” for when a decision would be rendered and that the estimate could be 
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demonstrates that the government must set a firm deadline within the initial 60-day 

period, and if that deadline is not met, the contractor may choose to treat any 

further extension of the deadline as a deemed denial of its claim. See 41 U.S.C. § 

7103(f)(2); Claude E. Atkins, 27 Fed. Cl. at 145. 

Because section 7103(f)(2) requires that the contracting officer issue a final 

decision within the initial deadline set by the government, R&S may treat the 

elapse of the government’s July 15, 2014 deadline in this case as a deemed denial 

of its claim. Id. The Court, accordingly, possesses subject-matter jurisdiction to 

consider R&S’s claim. 

D. Stay of Proceedings 

As an alternative to dismissal of this case, the government requests that the 

Court stay and remand this case to the contracting officer for a final decision. Def. 

Mot. at 17-18. R&S opposes this request. Pl. Opp. at 2. As this Court possesses 

subject-matter jurisdiction over R&S’s claim, the Court has discretion to issue a 

stay order “to obtain a decision by the contracting officer.” 41 U.S.C. § 

7103(f)(5).5

 “[W]hen the Court does possess jurisdiction over a claim based upon 

 

extended if reasonable. In Appeal of Chester P. Schwartz, Gary A. Mosko, and Stanley H. 

Marks, VABCA No. 2975, 1989 WL 156822 (V.A.B.C.A. Dec. 8, 1989), the VABCA held that 

the claim in the case was deemed denied, but stated, in dictum, that a “good faith estimate” was 

all that was required. In Appeal of Suh’dutsing Techs., ASBCA No. 58760, 2014 WL 1909252, 

(A.S.B.C.A. Apr. 28, 2014), the Armed Services Board of Contract Appeals held that the claim 

in the case was deemed denied because the contracting officer did not issue a fixed date for 

reaching a decision on the claim.

5

 In their Joint Status Report filed with the Court on February 5, 2015, the parties assert that the 

contracting officer has no jurisdiction to issue a final decision on R&S’s claim while this 

litigation is pending. See February 5, 2015 Joint Status Report at 4, 7. In Sharman Co. v. United 

States, the Court of Appeals for the Federal Circuit held that “[o]nce a claim is in litigation, the 

Department of Justice gains exclusive authority to act in the pending litigation. . . . That 

exclusive authority divests the contracting officer of his authority to issue a final decision on the 

claim.” See Sharman Co. v. United States, 2 F.3d 1564, 1571 (Fed. Cir. 1993) (citations 

omitted), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572. However, 

Sharman did not address circumstances where the Court has determined that it possesses 

jurisdiction and seeks to remand a case to the contracting officer pursuant to section 7103(f)(5). 

Id. Rather, as discussed above, the CDA explicitly grants the Court the authority to “retrocede 

authority to the contracting officer” when the Court “posses[es] jurisdiction over a claim based 

on a deemed denial.” United Partition Sys., Inc. v. United States, 59 Fed. Cl. 627, 643 (2004); 

see also RCFC Rule 56.2(a)(1) (allowing the Court to remand matters within its jurisdiction to an 

administrative or executive body or official). 
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a deemed denial, it is specifically granted discretion to retrocede authority to the 

contracting officer [by the CDA].” United Partition Sys., Inc. v. United States, 59 

Fed. Cl. 627, 643 (2004). Thus, the Court may stay and remand this case to the 

contracting officer in order to “obtain a final decision when the Court believes that 

such a decision would be beneficial to the parties and assist resolution of the 

matter.” Id. at 641-642. 

The government argues in its motion that a stay and remand of this case is 

warranted because the contracting officer has already devoted substantial resources 

to reviewing R&S’s claim. Def. Mot. at 18. The government further asserts that 

the ongoing review of R&S’s claim has “great potential to identify significant 

areas of agreement between R&S and the Government that could substantially 

narrow the issues truly in dispute between the parties.” Id. Because the 

contracting officer has already committed significant resources towards analyzing 

R&S’s claim, a stay until the contracting officer issues a decision will promote 

judicial economy.6 The government has represented to the Court that the 

contracting officer’s review is expected to be completed by March 15, 2015. See

Def. Mot. at 18; Def. Reply at 9; February 5, 2015 Joint Status Report. Given this 

expectation, a short stay would not work an undue hardship on the parties. As a 

remand of this case to the contracting officer for a decision would be beneficial to 

the resolution of this matter, the Court will stay proceedings in this case until after 

the issuance of the decision, which shall be no later than 30 days from the filing of 

this Memorandum Opinion and Order. 

IV. CONCLUSION 

For the foregoing reasons, the government’s failure to reach an actual 

decision on R&S’s claim within the time initially specified by the contracting 

officer constitutes a deemed denial of that claim under the CDA. R&S may appeal 

the deemed denial of its claim in this Court under the CDA. Accordingly, the 

government’s motion to dismiss, or alternatively for summary judgment, is 

DENIED. 

 

6

 While the Court believes a decision from the contracting officer will be beneficial to this case, 

the contracting officer’s findings of facts are not binding upon the parties and are not entitled to 

any deference. The Court conducts its review de novo. Wilner v. United States, 24 F.3d 1397, 

1401 (Fed. Cir. 1994). 
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Because the government has completed much of the work needed to review 

R&S’s claim and a decision by the contracting officer on that claim is imminent, 

the Court exercises its discretion under the CDA to stay these proceedings to 

obtain a final decision by the contracting officer. The government’s motion for 

remand to the contracting officer for a final decision is, therefore, GRANTED. 

The case is STAYED 30 days from the filing of this Memorandum Opinion and 

Order and REMANDED to the contracting officer for a decision, which shall be 

issued no later than 30 days from the filing of this Memorandum Opinion and 

Order. 

The parties are instructed to file a joint status report on or before 45 days 

from the filing of this Memorandum Opinion and Order advising the Court of their 

views on how this matter should proceed, which shall include a proposed schedule 

for discovery and a discussion of whether this case should be consolidated with 

Rudolph & Sletten, Inc. v. United States, No. 14-14C (Fed. Cl. filed Jan. 6, 2014). 

The parties shall bear their own costs. 

IT IS SO ORDERED. 

 

s/ Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY 

Judge