IN RE PETER C. NWOGU, doing business as Environmental Safety Consult- ants, Inc v. United States, 497 Fed. Appx. 952 Fed. Cir. 2012

Note: This Order is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
IN RE PETER C. NWOGU,
(doing business as Environmental Safety Consult-
ants, Inc.),
Petitioner.
__________________________
2013-M166
__________________________
On Petition for Writ of Mandamus to the United
States Court of Federal Claims in No. 09-CV-0268, Judge
Marian Blank Horn.
__________________________
ON PETITION
__________________________
Before N EWMAN, O’M ALLEY , and WALLACH , Circuit
Judges.
Dissenting opinion filed by Circuit Judge WALLACH .
N EWMAN, Circuit Judge.
O R D E R
Petitioner Peter C. Nwogu, doing business as Envi-
ronmental Safety Consultants, Inc. (“ESCI”), challenges
the United States Court of Federal Claims’ stay of en-
forcement of a $93,989 judgment against the Government.
The Federal Circuit affirmed the judgment, but on re-

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IN RE NWOGU 2
mand the Court of Federal Claims stayed payment of the
award pending the outcome of other proceedings before
the Armed Services Board of Contract Appeals
(“ASBCA”). ESCI contends that this is a departure from
this court’s mandate, and points out that the other pro-
ceedings concern an unrelated contract and do not affect
this judgment. It further appears that several other
proceedings have been terminated insofar as they might
result in an award in favor of the government.
ESCI asks us to order the Court of Federal Claims to
vacate the stay of payment. We agree that payment is
required, and remand to the Court of Federal Claims for
payment of the judgment, including accrued interest as
appropriate.
BACKGROUND
The facts and procedural history of this federal con-
tract case are set forth in Nwogu v. United States, 497
Fed. Appx. 952 (Fed. Cir. 2012); we recount only those
pertinent to this petition. The dispute arose out of a
contract awarded to ESCI to remove, transport, and
dispose of industrial waste sludge from lagoons at Naval
Centers in Warminster, Pennsylvania (“Contract I”), and
a contract to ESCI to remove storage tanks in Yorktown,
Virginia (“Contract II”).
For Contract I, the parties agreed to terminate the
contract, leading to a September 2005 judgment of the
ASBCA in favor of ESCI in the amount of $93,989.00, plus
interest. This is the award here at issue. The govern-
ment did not pay this award, citing the pendency of a
dispute related to Contract II.
As to Contract II, the Navy’s Contracting Officer ini-
tially terminated this contract for default and ruled that
ESCI owed the Government $167,691.75 in reprocure-
ment costs and liquidated damages. ESCI appealed
Contract II to the ASBCA, and in September 2011 the

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IN RE NWOGU 3
ASBCA converted the termination of Contract II for
default to one of convenience to the Government. Envtl.
Safety Consultants. Inc., ASBCA No. 51722, 11-2 BCA ¶
34,848.
While the Contract II proceedings were ongoing, ESCI
asked the Court of Federal Claims to enforce the ASBCA
judgment on Contract I. The Government moved for
dismissal, arguing that the court lacked jurisdiction of
various claims asserted in the Contract I complaint and
that the Government had a right of setoff based on dam-
ages owed to the Government under Contract II. In
August 2010 the court granted the Government’s motion
and dismissed the enforcement action based on the as-
serted right of setoff.
ESCI appealed to the Federal Circuit, and we vacated
the dismissal in view of the ASBCA’s final decision to
convert the termination of Contract II to one of conven-
ience of the government. We also reversed the holding of
the Court of Federal Claims that it lacked jurisdiction to
order payment of the judgment. We remanded “for en-
forcement of Mr. Nwogu’s award of $93,989, plus appro-
priate interest, thereon.”
On remand, the Government informed the Court of
Federal Claims that four ASBCA proceedings remained
pending, which the Government asserted could impact
ESCI’s recovery under Contract II, and thus effect a setoff
against the award for Contract I. Those four ASBCA
proceedings were: (1) ESCI’s action to enforce the ASBCA
judgment on Contract I (No. 53485); (2) ESCI’s claims for
payment of an invoice for Contract II (Nos. 58221/58847);
(3) ESCI’s appeal of the termination for default of Con-
tract II (No. 51722); and (4) ESCI’s appeal from a deemed
denied claim for termination for convenience from Con-
tract II (No. 58343).

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IN RE NWOGU 4
In April 2013 the Court of Federal Claims stayed the
remand proceedings pending resolution of the four
ASBCA matters, and directed the Government to file
monthly status reports. ESCI moved for reconsideration,
asserting that this court’s mandate required the Court of
Federal Claims to enter the judgment in its favor. After
four months of inaction on this motion, ESCI filed this
petition for a writ of mandamus.
According to the Government’s status report filed at
the Court of Federal Claims on July 3, 2014, the only
ASBCA action that the Government considers pending is
No. 58343, which the Government describes as “ESCI’s
appeal of its termination for convenience claim on the
Yorktown contract.”
D ISCUSSION
A function of mandamus “is to assure that a trial
court complies with the spirit as well as the letter of the
mandate issued to that court” by a court of appeals. In re
Cont’l Ill. Secs. Litig., 985 F.2d 867, 869 (7th Cir. 1993);
see also In re Sanford Fork & Tool Co., 160 U.S. 247, 255–
56 (1895) (If the lower court “does not give full effect to
the mandate, its action may be controlled, either upon a
new appeal (if involving a sufficient amount) or by a writ
of mandamus to execute the mandate[.]”); Vizcaino v. U.S.
Dist. Court, 173 F.3d 713, 719 (9th Cir. 1999).
The rationale for mandamus relief is two-fold: First,
disregard of appellate mandates would undermine the
supervisory role of the courts of appeals within the federal
judicial system. Vizcaino, 173 F.3d at 719. Second,
“litigants who have proceeded to judgment in higher
courts ‘should not be required to go through that entire
process again to obtain execution of the judgment.’” Id.
(citing General Atomic Co. v. Felter, 436 U.S. 493, 497
(1978)). Thus, the question is whether the Court of Fed-
eral Claims “strictly” complied with this court’s mandate.

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IN RE NWOGU 5
Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128,
1132 (10th Cir. 2001).
We agree with ESCI that the stay was an unlawful
deviation from this court’s mandate. In our remand
decision we observed that Contract II was no longer held
in default, and ordered payment of the judgment on
Contract I. We did not invite further delay, or new issues,
or additional reasons not to pay the judgment awarded in
2005, entitlement to which has never been disputed as to
Contract I. By vacating the decision that the Government
could properly withhold payment, our mandate precluded
the Court of Federal claims from staying payment.
The Government argues that a stay of all proceedings
is appropriate pending disposition of the four ASBCA
actions, because the Government intends to set-off this
judgment against any amount that might be due to the
Government on Contract II. However the government has
not shown that it is in a position to collect any monetary
damages from ESCI in the ASBCA appeals. See Def.
Status Report at 2–6, Nwogu v. United States, No. 09-268,
ECF No. 73 (July 3, 2014). In ASBCA Appeal No. 51722,
judgment was entered in favor of ESCI; the record does
not show the status of ESCI’s claim for EAJA fees.
ASBCA Appeal No. 53485 is ESCI’s action to enforce the
judgment here at issue concerning Contract I, the Gov-
ernment stating that it “does not consider this case to be
pending before the ASBCA.” ASBCA Appeal No. 58221 is
a second appeal of Contract II in which ESCI seeks pay-
ment. That appeal was dismissed for lack of jurisdiction,
but was re-docketed as Appeal No. 58847. On January
23, 2014 the ASBCA dismissed Appeal No. 58847 as time
barred. That decision is currently on appeal to this court,
as Environmental Safety Consultants, Inc., v. Mabus, No.
14-1460 (Fed. Cir.). Finally Appeal No. 58343 is an
appeal of the termination for convenience claim on Con-
tract II, the terms of which remain in dispute before the

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IN RE NWOGU 6
ASBCA. In all events, no ASBCA-origin matter appears
to involve any claim for set-off by the government.
As ESCI points out, the only claims pending before
the ASBCA are claims by ESCI, not against ESCI. The
Government “neither has any claim pending against the
Plaintiff before the ASBCA nor filed any setoff claim
against Plaintiff in any of the Plaintiff’s pending claims
before the ASBCA[.]” Nwogu v. United States, No. 09-cv-
0268, Response at 1-2 (CFC June 14, 2013) ECF No. 59.
The Government concedes that it does not consider three
of the four ASBCA appeals to be pending. The Govern-
ment raises the new argument that a basis for setoff may
arise in an unidentified claim by the Small Business
Administration. The record does not discuss this claim, or
explain how it relates to the judgment on Contract I.
“Judicial mandates must be obeyed, and litigation must
have an end.” Cont’l Ill. Secs. Litig., 985 F.2d at 869. It is
time to pay this 2005 judgment.
Accordingly,
I T I S O RDERED T HAT :
The petition is granted. The Court of Federal Claims
April 4, 2013 stay order is vacated. The court is directed
to proceed promptly to enter judgment directing payment
of the ASBCA judgment on Contract I in the amount of
$93,989 plus interest in accordance with law.
F OR T HE COURT
July 9, 2014 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
cc: Clerk, United States Court of Federal Claims
s26

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N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
IN RE PETER C. NWOGU,
(doing business as Environmental Safety Consult-
ants, Inc.),
Petitioner.
__________________________
2013-M166
__________________________
On Petition for Writ of Mandamus to the United
States Court of Federal Claims in No. 09-CV-0268, Judge
Marian Blank Horn.
__________________________
ON PETITION
__________________________
WALLACH , Circuit Judge, dissenting.
The majority incorrectly concludes that the mandate
rule required the Court of Federal Claims to enter final
judgment in Mr. Nwogu’s favor. This court’s decision did
not finally resolve Mr. Nwogu’s enforcement claim, so the
mandate rule does not entitle him to final judgment.
Because Mr. Nwogu has not shown a “clear and indisput-
able” right to mandamus relief, I would deny his petition.
See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381
(2004) (internal quotation marks and citation omitted).

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IN RE NWOGU 2
The mandate rule prevents the trial court from recon-
sidering “issues actually decided [on appeal].” Amado v.
Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir. 2008)
(alteration in original); see also Banks v. United States,
741 F.3d 1268, 1276 (Fed. Cir. 2014). In Mr. Nwogu’s
prior appeal, this court reversed the trial court’s dismissal
of the enforcement claim for lack of subject matter juris-
diction. Nwogu v. United States, 497 F. App’x 952, 957
(Fed. Cir. 2012) (unpublished). This jurisdictional holding
did not resolve the merits of Mr. Nwogu’s enforcement
claim, and did not require the Court of Federal Claims to
enter final judgment in Mr. Nwogu’s favor.
Nor does the panel’s setoff analysis reflect a final
resolution of Mr. Nwogu’s enforcement claim. The Court
of Federal Claims did not consider the Government’s
setoff defense in the context of Mr. Nwogu’s enforcement
claim, because it held that it lacked jurisdiction over that
claim. Instead, the Court of Federal Claims considered
setoff as it applied to Mr. Nwogu’s takings claim, the only
claim over which the Court of Federal Claims held it had
jurisdiction. Nwogu v. United States, 94 Fed. Cl. 637, 662
(2010) (“With the government’s common law right of setoff
acknowledged,” the Contract I judgment “is not the type
of private property interest taken for public use from
which a compensatory taking under the Fifth Amendment
to the Constitution arises.”). Finding the Government
had a valid setoff defense, the Court of Federal Claims
granted the Government’s motion for summary judgment
with respect to Mr. Nwogu’s takings claim. Id. at 660.
On appeal, the panel vacated, but did not reverse, the
trial court’s setoff analysis. Nwogu, 497 F. App’x at 956.
Even if the panel had reversed the setoff decision, it
would have resulted in denial of the Government’s motion
for summary judgment on the takings claim. It would not
have finally resolved the takings claim in Mr. Nwogu’s

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IN RE NWOGU 3
favor, nor would it result in final judgment for Mr. Nwogu
on his separate enforcement claim.1 In this procedural
context, the panel’s statement “remand[ing] to the [Court
of Federal Claims] for enforcement of Mr. Nwogu’s award”
did not require final resolution of the claim in Mr.
Nwogu’s favor. Id. at 958.
The majority’s contrary holding deprives the Govern-
ment of the opportunity to file a responsive pleading to
Mr. Nwogu’s enforcement claim. The Government timely
moved to dismiss Mr. Nwogu’s Complaint, thereby tolling
its deadline for filing an answer. See R. Ct. Fed. Cl.
12(a)(4). After remand from this court, the Court of
Federal Claims promptly stayed the case, so the Govern-
ment had no opportunity to file an answer. The majority
faults the Government for previously failing to raise its
setoff defense based on Small-Business-Administration-
acquired claims against Mr. Nwogu, but the Government
had no opportunity to do so.
I do share the majority’s concern over the ongoing
stay of Mr. Nwogu’s claim. Maj. Order at 5; see Pet. 12.
Mr. Nwogu moved for reconsideration of the stay in April
2013, and his motion has been pending at the Court of
Federal Claims for over a year. Gov. App. 71. The Gov-
ernment’s response to Mr. Nwogu’s reconsideration mo-
tion stated only that the stay was appropriate, without
providing any support. See Resp., Nwogu v. United
States, 94 Fed. Cl. 637 (2010), ECF No. 54, at 1. Moreo-
1 The only potentially dispositive motion filed in
this case was the Government’s motion to dismiss or, in
the alternative, for summary judgment. Denial of that
motion could not result in final judgment for Mr. Nwogu,
nor did this court indicate it was sua sponte entering
summary judgment for Mr. Nwogu, the non-movant. See,
e.g., Simpson v. Merchs. Recovery Bureau, Inc., 171 F.3d
546, 549 (7th Cir. 1999).

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IN RE NWOGU 4
ver, Mr. Nwogu appears correct that there is little basis
for the ongoing stay of his enforcement claim. Most of the
proceedings on which the stay was based are no longer
pending before the ASBCA, and those that are pending
appear irrelevant to the Government’s setoff claims. See
Status Report of June 4, 2014, Nwogu v. United States, 94
Fed. Cl. 637 (2010), ECF No. 72, 2–4.
Nevertheless, these concerns over the ongoing stay do
not entitle Mr. Nwogu to a writ of mandamus ordering
final judgment in his favor. A petitioner seeking the
extraordinary remedy of mandamus relief must prove a
“clear and indisputable” right to the writ and the absence
of adequate alternative means to obtain the requested
relief. Cheney, 542 U.S. at 381 (internal quotation marks
and citation omitted) (Additionally, the issuing court
“must be satisfied that the writ is appropriate under the
circumstances.”). Mr. Nwogu has no “clear and indisput-
able” right to final judgment in his favor based upon
violation of the mandate rule. I therefore respectfully
dissent from the majority’s grant of such relief.

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