the Boeing Company v. United States

United States Court of Appeals
for the Federal Circuit
______________________
THE BOEING COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1018
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-cv-01969-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: October 4, 2024
______________________
S COTT M. MCCALEB , Wiley Rein, LLP, Washington, DC,
argued for plaintiff-appellant. Also represented by J ON W.
BURD, G EORGE EMIL P ETEL , G ARY SCOTT WARD; J ADE
T OTMAN, The Boeing Company, Arlington, VA.
D ANIEL B. VOLK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
BORISLAV K USHNIR, P ATRICIA M. MCCARTHY .
______________________
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BOEING COMPANY v. US 2
Before T ARANTO, HUGHES , and STOLL , Circuit Judges.
HUGHES , Circuit Judge.
The Boeing Company appeals the final decision of the
Court of Federal Claims dismissing Boeing’s complaint in
its entirety. Boeing’s complaint contained three contract
claims (Counts I, II, and III) and an illegal exaction claim
(Count IV). On cross-motions for summary judgment, the
trial court “decline[d] to extend its jurisdictional reach to
include challenges to the validity of a regulation”
(48 C.F.R. § 30.606), and thus dismissed Counts I, II, and
III without prejudice. Boeing Co. v. United States, 162 Fed.
Cl. 78, 85 (2022); J.A. 8–9. The court acknowledged that it
had jurisdiction over the illegal exaction claim but none-
theless determined that it “lack[ed] the authority to con-
sider” it, and thus dismissed Count IV with prejudice. Id.
We reverse and remand as to all four Counts.
I
Before addressing the relevant facts and procedural
history of this action, we begin with a brief overview of the
applicable legal framework.
A
The Cost Accounting Standards (CAS) Board has “ex-
clusive authority to prescribe, amend, and rescind cost ac-
counting standards” governing contracts with the Federal
Government. 41 U.S.C. § 1502(a)(1). We have previously
stated:
Standards promulgated by the [CAS] Board are
“mandatory for use by all executive agencies and by
contractors and subcontractors in estimating, accu-
mulating, and reporting costs in connection with
the pricing and administration of, and settlement
of disputes concerning, all negotiated prime con-
tract and subcontract procurements with the Fed-
eral Government in excess of the amount set forth
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BOEING COMPANY v. US 3
in section 2306a(a)(1)(A)(i) of title 10,” which refers
to contracts worth more than $2 million.
Boeing Co. v. United States, 968 F.3d 1371, 1374 (Fed. Cir.
2020) (quoting 41 U.S.C. § 1502(b)(1)(B)); J.A. 1568.
Additionally, the CAS Board is required to “prescribe
regulations for the implementation of cost accounting
standards prescribed or interpreted under this section.”
41 U.S.C. § 1502(f). Those CAS regulations are then “incor-
porated into the Federal Acquisition Regulation” (FAR).
Id.; FAR 30.101(b) (“[T]he CAS, and any other regulations
promulgated by the [CAS Board]. . . are incorporated in
[FAR] part 30.”). Further, as a condition for contracting
with the Federal Government, the CAS regulations require
contractors to “agree to a contract price adjustment, with
interest, for any increased costs paid to the contractor or
subcontractor by the Federal Government because of a
change in the contractor’s or subcontractor’s cost account-
ing practices or a failure by the contractor or subcontractor
to comply with applicable cost accounting standards.” Id.
§ 1502(f)(2).
Subsection 606 of FAR part 30 (48 C.F.R. § 30.606) out-
lines the procedures for adjusting a contract price to “re-
solve a cost impact attributed to a change in cost
accounting practice or a noncompliance.” FAR 30.606(a)(2).
FAR 30.606 gives the contracting officer discretion to “ad-
just[] a single contract, several but not all contracts, all
contracts, or any other suitable method.” Id. But the regu-
lation also limits that discretion—it instructs the contract-
ing officer not to “combine the cost impacts of . . . [o]ne or
more unilateral changes” “unless all of the cost impacts are
increased costs to [the] Government.” Id.
§ 30.606(a)(3)(ii)(A). The amount of a contract price adjust-
ment is also limited by the CAS statute’s contract price ad-
justment section: “[t]he Federal Government may not
recover costs greater than the aggregate increased cost to
the Federal Government.” 41 U.S.C. § 1503(b). Further,
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BOEING COMPANY v. US 4
41 U.S.C. § 1503(a) provides that any disagreement as to a
contract price adjustment, “including whether the contrac-
tor or subcontractor has complied with the applicable cost
accounting standards . . . constitute[s] a dispute under
chapter 71 of [title 41],” i.e., a dispute under the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101–09. See, e.g., Boe-
ing, 968 F.3d at 1375; J.A. 1569.
If the contractor and the government fail to agree on a
CAS-governed contract price adjustment, the CDA author-
izes the contracting-party to submit a certified claim to a
contracting officer for a final written decision. See
41 U.S.C. § 7103(a)(1)–(3). A contractor may dispute a con-
tracting officer’s final decision by either “appeal[ing] the
decision to an agency board,” id. § 7104(a), or “bring[ing]
an action directly on the claim in the United States Court
of Federal Claims,” id. § 7104(b)(1). Pursuant to
§ 1491(a)(2) of the Tucker Act, the Court of Federal Claims
has exclusive jurisdiction over all CDA claims. 28 U.S.C.
§ 1491(a)(2) (“The Court of Federal Claims shall have ju-
risdiction to render judgment upon any claim by or against,
or dispute with, a contractor arising under section
7104(b)(1) of title 41, including a dispute concern-
ing . . . compliance with cost accounting standards . . . .”
(emphasis added)).
Pursuant to § 1491(a)(1) of the Tucker Act, the Court
of Federal Claims also has jurisdiction to entertain mone-
tary claims against the United States based on contracts
with the United States, the Constitution, or other money
mandating statutes or regulation. 28 U.S.C. § 1491(a)(1).
Notably, such jurisdiction specifically encompasses so-
called illegal exaction claims brought pursuant to
§ 1491(a)(1). See Ontario Power Generation, Inc. v. United
States, 369 F.3d 1298, 1301 (Fed. Cir. 2004) (describing the
types of “underlying monetary claims,” including illegal ex-
action claims, that are properly brought under 28 U.S.C.
§ 1491(a)(1)).
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BOEING COMPANY v. US 5
B
The Boeing Company (Boeing) holds many CAS-
governed contracts with the government. Effective Janu-
ary 1, 2011, Boeing voluntarily and simultaneously
changed eight of its disclosed cost accounting practices. In
June 2014, Boeing submitted a cost impact proposal re-
lated to the eight changes. Two of the changes increased
the government’s costs on the existing contracts, while the
remaining six changes were either neutral or decreased the
government’s costs. Ultimately, Boeing estimated that the
net effect of its changed practices would decrease the gov-
ernment’s costs by just under $1.5 million.
In December 2016, after an audit by the Defense Con-
tract Audit Agency, the government sent Boeing a contract-
ing officer’s final written decision requesting
reimbursement of $1,064,773 “in accordance with FAR
Part 30.6,” which accounted for the increased costs, plus
interest, related to the two January 2011 price increasing
changes. See J.A. 58–60. The final decision also provided
notice to Boeing of its right to appeal the decision or bring
an action directly in the Court of Federal Claims. J.A. 63–
64. Boeing, pursuant to 41 U.S.C. § 1503(b), challenged the
appropriateness of “the Government’s demand that Boeing
pay a $1,064,773 price adjustment.” J.A. 56. According to
Boeing, there were no cost increases to the government in
the aggregate, because the cost increases were “offset” by
the cost decreases. J.A. 55–56. On September 25, 2017, in
response to the contracting officer’s December 2016 final
decision, Boeing submitted a letter to the contracting of-
ficer with the subject: “Request for Contracting Officer’s Fi-
nal Decision.” See id. In the letter, Boeing requested: (1) “a
final decision interpreting the affected contracts”; (2) “[i]n
the alternative, . . . reformation of [Boeing’s] affected con-
tracts with the Government”; (3) “a final decision finding
that the December 21 [2016 Contracting Officer’s Final De-
cision]’s demand of $1,064,773 breaches the Government’s
obligations to Boeing under each of the affected contracts”;
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BOEING COMPANY v. US 6
and (4) “a final decision holding that the Government’s de-
mand that Boeing pay a $1,064,773 price adjust-
ment . . . amounts to an illegal exaction.” Id. In a letter
dated November 21, 2017, the contracting officer deter-
mined that aside from Boeing’s request for reformation of
the affected contracts, the remaining requests were “not a
new claim but a request for reconsideration of [the Decem-
ber 2016 Contracting Officer’s Final Decision].” Id. The
contracting officer subsequently denied Boeing’s claim,
stating that her December 2016 decision “stands as writ-
ten” and that she would neither reconsider her earlier de-
cision nor issue a new final decision as Boeing had
requested. See J.A. 56. Thereafter, Boeing began paying
$8,900 per month pursuant to an installment agreement.
On December 18, 2017, Boeing filed a complaint in the
Court of Federal Claims against the United States. J.A.
18–53. Boeing asserted that the trial court had jurisdiction
under the CDA (41 U.S.C. § 7104(b)(1)), or, in the alterna-
tive, under the Tucker Act (§ 1491(a)(1)). J.A. 24. In its
complaint, Boeing re-asserted the same four claims that it
had alleged in its September 2017 letter to the contracting
officer. Counts I, II, and III of Boeing’s complaint are con-
tract claims and alternative Count IV is an illegal exaction
claim. Boeing alleged that the government breached the
relevant contracts by seeking to “recover[] costs greater
than the aggregate increased costs to the Federal Govern-
ment,” in violation of the relevant FAR and CAS provisions
incorporated into the contracts. J.A. 48–49.
Subsequently, Boeing moved for judgment on the
pleadings under Rule 12(c) of the U.S. Court of Federal
Claims (RCFC or Rule). Boeing Co. v. United States, 143
Fed. Cl. 298, 301 (2019), rev’d and remanded, 968 F.3d
1371 (Fed. Cir. 2020). The government moved to dismiss
under Rules 12(b)(1) and 12(b)(6) or, in the alternative, for
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BOEING COMPANY v. US 7
summary judgment under Rule 56.1 Id. On May 29, 2019,
the trial court granted the government’s combined motion
to dismiss and motion for summary judgment. See J.A.
1059–80; Boeing, 143 Fed. Cl. at 301. In its analysis, the
trial court held that Boeing had waived its contract claims
and further concluded that it lacked jurisdiction to consider
the illegal exaction claim because the statute pursuant to
which the claim was brought was not money mandating.
Boeing, 143 Fed. Cl. at 314–15. Boeing appealed the trial
court’s decision to this court, and we reversed and re-
manded on all counts, “concluding that the trial court mis-
applied the doctrine of waiver and misinterpreted the
jurisdictional standard for illegal exaction claims.” Boeing,
968 F.3d at 1373–74. More specifically, we stated that “to
establish [§ 1491(a)(1)] Tucker Act jurisdiction for an ille-
gal exaction claim, a party that has paid money over to the
government and seeks its return must make a non-frivo-
lous allegation that the government, in obtaining the
money, has violated the Constitution, a statute, or a regu-
lation.” Id. at 1383.
C
On remand, the parties filed cross-motions for sum-
mary judgment. The trial court determined that it lacked
jurisdiction over Boeing’s contract claims and lacked the
authority to consider the illegal exaction claim. It dis-
missed Boeing’s contract claims—Counts I, II, and III—
without prejudice, and Boeing’s alternative illegal exaction
claim—Count IV—with prejudice. As to Boeing’s contract
1 Although Boeing and the government moved for
judgment on the pleadings under Rule 12(c) and dismissal
under Rule 12(b), respectively, the trial court converted
these motions to Rule 56 motions for summary judgment
because the parties supported their arguments with mat-
ters outside the pleadings. J.A. 1061–62; Boeing,
143 Fed. Cl. at 302–03.
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BOEING COMPANY v. US 8
claims, the trial court concluded that “the gravamen of
[Boeing’s] complaint is a challenge to the validity of
FAR 30.606,” and therefore determined that it “does not
have jurisdiction to review the validity of regulations pur-
suant to the Administrative Procedure Act (APA), 5 U.S.C.
§ 702.” Boeing, 162 Fed. Cl. at 84; J.A. 5–6. As for Boeing’s
illegal exaction claim, the trial court recognized that our
prior opinion remanding the case affirmatively concluded
that the trial court “has jurisdiction to hear [Boeing]’s ille-
gal exaction claim.” Boeing, 162 Fed. Cl. at 85; J.A. 8. Nev-
ertheless, the trial court stated, “[n]otwithstanding that
conclusion, the court lacks the authority to consider [Boe-
ing]’s illegal exaction claim because challenges to the ap-
plication of the CAS statute must be made under the CDA,”
rather than by alleging an illegal exaction. Id.
Boeing appeals the trial court’s dismissal as to all four
counts. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
II
This court reviews the Court of Federal Claims’s legal
conclusions de novo and its factual findings for clear error.
Love Terminal Partners, L.P. v. United States, 889 F.3d
1331, 1340 (Fed. Cir. 2018).
III
We first address the trial court’s dismissal of Boeing’s
contract claims in Counts I, II, and III, and then turn to
the trial court’s dismissal of Boeing’s illegal exaction claim
in Count IV.
A
On appeal, Boeing argues that the trial court “erred in
dismissing Boeing’s complaint because it plainly has juris-
diction to resolve the parties’ dispute over the [contracting
officer’s] final decision assessing a contract price adjust-
ment.” Appellant’s Br. 26. Boeing first contends that the
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BOEING COMPANY v. US 9
CDA confers broad jurisdiction to the Court of Federal
Claims over disputes relating to procurement contracts,
and that the trial court’s “characteriz[ation of] Boeing’s
claim as disputing the validity and application of [a regu-
lation]” is irrelevant to the trial court’s jurisdiction. Appel-
lant’s Br. 27, 31. Second, Boeing argues that the trial court
relied on inapposite case law to erroneously “divest[] itself
of jurisdiction.” See Appellant’s Br. 39. We agree and ad-
dress each issue in turn.
1
The trial court’s determination that it did not have ju-
risdiction to review Boeing’s contract claims rests on its
conclusion that the true nature of the action “is a challenge
to the validity of FAR 30.606” and therefore, “is not a con-
tract case.” See J.A. 5 (citation omitted). We disagree. The
CDA explicitly provides that for contract-related claims
against the government, “a contractor may bring an action
directly on the claim in the United States Court of Federal
Claims.” 41 U.S.C. § 7104(b)(1). Such is the case here. Alt-
hough Boeing’s claims implicate the validity of
FAR 30.606, the “true nature of the action” is undoubtedly
a contract dispute. Katz v. Cisneros, 16 F.3d 1204, 1207
(Fed. Cir. 1994) (“Regardless of the characterization of the
case ascribed by [the plaintiff], we look to the true nature
of the action in determining the existence or not of jurisdic-
tion.”). Before the contracting officer, the government ar-
gued that under the relevant contracts, Boeing owes
$1,064,773 in “increased costs, plus interest.” Appellee’s
Br. 7, 21 n.9; J.A. 58–60. Conversely, Boeing argues that it
does not owe such costs under the relevant contracts. Thus,
at its core, Boeing disputes the government’s position that
it is entitled to $1,064,773 in contract-related costs. There
can be no question that the parties’ disagreement over
whether Boeing owes the government money under the
contracts is a contract dispute to be appropriately resolved
by the Court of Federal Claims pursuant to its jurisdiction
under the CDA and § 1491(a)(2) of the Tucker Act.
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BOEING COMPANY v. US 10
Further, this court has previously held that when a
contract dispute properly falls under the CDA, it “is of no
consequence to the question of jurisdiction” that the com-
plaint seeks to invalidate a regulation. See Tex. Health
Choice, L.C. v. Off. of Pers. Mgmt., 400 F.3d 895, 898–900
(Fed. Cir. 2005) (ordering the district court to transfer the
suit “relating to the validity of [a r]egulation” and “involv-
ing a contract claim filed by a contractor against the United
States” to the Court of Federal Claims, which has “exclu-
sive jurisdiction” over such suits pursuant to the CDA). Alt-
hough not binding on this court, other courts have similarly
confirmed that statutory challenges do not impact the
Court of Federal Claims’s exclusive jurisdiction over claims
arising under the CDA. See Lockheed Martin Corp. v. Def.
Cont. Audit Agency, 397 F. Supp. 2d 659, 665 (D. Md. 2005)
(“It is well-established therefore that disguised contract ac-
tions may not escape the CDA. Neither contractors nor the
government may bring a contract action in federal district
court simply by recasting claims in tort language or as
some statutory or regulatory violation.”) (quoting United
States v. J & E Salvage Co., 55 F.3d 985, 988 (4th Cir.
1995)). Though Boeing challenges the validity of a certain
regulation, the Court of Federal Claims still maintains ex-
clusive jurisdiction over the action because Boeing’s con-
tract claims are properly subject to the CDA.
The government nevertheless argues that the trial
court lacks jurisdiction because “the outcome of the case”
does not depend “on the validity of [the challenged] regula-
tion.” Appellee’s Br. 20. This is incorrect. Boeing asserts
that the government is not entitled to increased costs be-
cause FAR 30.606 is invalid in view of the CAS provisions
and regulations. Appellant’s Br. 1–2, 31; see also 41 U.S.C.
§ 1503(b) (CAS statute prohibiting the government from
recovering “costs greater than the aggregate increased
cost” (emphasis added)). As the government concedes,
FAR 30.606 “provides instructions to [the government’s]
contracting officers,” Appellee’s Br. 22, on how to “resolve
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BOEING COMPANY v. US 11
a cost impact attributed to a change in cost accounting
practice,” FAR 30.606(a)(2). If, as Boeing contends, the reg-
ulation is invalid, then the instructions the contracting of-
ficer used to calculate the alleged increased costs central to
this dispute would also be invalid. Therefore, resolution of
this contract dispute—i.e., whether under the contract, the
government is entitled to recover increased costs calculated
pursuant to FAR 30.606—is inextricably intertwined with
the validity of the regulation. As such, we conclude that the
Court of Federal Claims has jurisdiction under the CDA to
resolve this contract dispute and the validity of the under-
lying regulation.
2
The trial court erred when it determined that, pursu-
ant to § 702 of the APA, it lacked jurisdiction to determine
the validity of FAR 30.606. See J.A. 6–8. The trial court is
correct that, in general, for actions that do not involve con-
tract-related claims, the Court of Federal Claims’s limited
jurisdiction under the Tucker Act does not authorize re-
view of pure challenges to the validity of a regulation. See
J.A. 6–7 (citing Land Shark Shredding, LLC v. United
States, 842 F. App’x 589, 593 (Fed. Cir. 2021); Martinez v.
United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en
banc); Southfork Sys., Inc. v. United States, 141 F.3d 1124,
1135 (Fed. Cir. 1998); Crocker v. United States, 125 F.3d
1475, 1476 (Fed. Cir. 1997); Suburban Mort. Assocs., Inc.
v. United States Dep’t. of Hous. & Urb. Dev., 480 F.3d 1116,
1126–27 (2007); Katz, 16 F.3d at 1209. Instead, such regu-
lations are properly challenged in a district court under the
APA. See 5 U.S.C. §§ 702–06; see also Boeing, 162 Fed. Cl.
at 84; J.A. 6. However, as discussed above, when the action
is a contract case—and more importantly, a contract case
that is subject to the CDA—the Court of Federal Claims
has exclusive jurisdiction to review the validity of the chal-
lenged regulation. Unlike non-contract cases, “there is no
other alternative such as the district courts [for claims sub-
ject to the CDA]. The purpose for centralizing the
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BOEING COMPANY v. US 12
resolution of government contract disputes in the Court of
Federal Claims, rather than in district court, is to ensure
national uniformity in government contract law.” Tex.
Health, 400 F.3d at 899 (citing Katz, 16 F.3d at 1210).
The trial court’s erroneous jurisdictional conclusion to
the contrary can easily be explained by its reliance on in-
apposite case law. Unlike Texas Health and the case at
hand, the Federal Circuit precedent that the trial court re-
lied on did not involve contract disputes properly brought
under the Court of Federal Claims’s exclusive jurisdiction
over CDA claims. See Boeing, 162 Fed. Cl. at 84–85; J.A. 6–
8 (collecting cases). Because the cases that the trial court
used to support its jurisdictional analysis of Boeing’s con-
tract claims are irrelevant here, they do not address the
jurisdictional question at hand in this contract dispute and
the trial court erred by relying on them.
We decline the government’s invitation to evaluate the
grant of summary judgment on the merits. Appellee’s Br. 2.
See, e.g., Exmark Mfg. Co. v. Briggs & Stratton Power Prod.
Grp., 879 F.3d 1332, 1344 (Fed. Cir. 2018); OSRAM Sylva-
nia, Inc. v. Am. Induction Techs., Inc., 701 F.3d 698, 707
(Fed. Cir. 2012).
B
Boeing also appeals the trial court’s dismissal of its il-
legal exaction claim, arguing that the “Court of Federal
Claims has jurisdiction over [the claim], and nothing bars
it from adjudicating [the claim] on the merits.” Appellant’s
Br. 43. We agree.
When this case was previously before this court, we
held that in the context of the Court of Federal Claims’s
jurisdiction under the Tucker Act, “Boeing has established
jurisdiction for its illegal exaction claim.” Boeing, 968 F.3d
at 1383. Yet on remand, the trial court, noting our court’s
jurisdictional guidance, determined it did not have “au-
thority to consider” Boeing’s illegal exaction claim
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BOEING COMPANY v. US 13
pursuant to the CDA. See J.A. 8. In its analysis, without
addressing its jurisdiction under § 1491(a)(1) of the Tucker
Act, the trial court simply stated that Boeing’s illegal exac-
tion claim “must be brought under the CDA,” because
“[w]hen the [CDA] applies, it provides the exclusive mech-
anism for dispute resolution.” J.A. 8 (second alteration in
original) (quoting Dalton v. Sherwood Van Lines, Inc., 50
F.3d 1014, 1017 (Fed. Cir. 1995)). Therefore, the trial court
concluded that Boeing’s “illegal exaction claim is barred in
this case” and dismissed it because Boeing “cannot make a
showing sufficient to establish its ability to bring an illegal
exaction claim in this case.” Boeing, 162 Fed. Cl. at 86; J.A.
8–9.
The trial court is correct that, in Dalton, we stated that
the CDA is the exclusive mechanism for dispute resolution,
and “was not designed to serve as an alternative adminis-
trative remedy, available at the contractor’s option.” 50
F.3d at 1017. Importantly, however, we were addressing a
different question than the one presented in this case—
namely, whether Congress intended for “two remedial
schemes,” i.e., administrative review under the Transpor-
tation Act of 1940, 31 U.S.C. § 3726 (payment for transpor-
tation) and the CDA “to apply to the same disputes.” See
Dalton, 50 F.3d at 1017 In addressing that question, we
recognized that, if Congress intended for the CDA—an ex-
clusive mechanism for resolution—to apply to a contract-
related transportation dispute, then the Transportation
Act’s procedures and regulations would therefore not ap-
ply. Id. After noting the many differences between the stat-
utes, we determined that the two “schemes cannot be
regarded as complementary,” and ultimately concluded
that “Congress did not intend the general provisions of the
Contract Disputes Act to supplant the pre-existing system
of administrative review specifically designed for transpor-
tation services subject to Section 3726.” Id. at 1018. Be-
cause Congress did not intend for both statutory schemes
to apply, we determined that the specifically designed
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BOEING COMPANY v. US 14
administrative review procedures under the Transporta-
tion Act, and not the CDA, governed the dispute. Id. There-
fore, because the contract-related transportation claims
were not subject to the CDA, we held that the Armed Ser-
vices Board of Contract Appeals lacked authority over the
dispute. Id. at 1015. Our holding in Dalton does not, how-
ever, stand for the proposition that when the Court of Fed-
eral Claims exercises its exclusive jurisdiction over
properly raised CDA claims, it is consequently prohibited
from simultaneously exercising its statutory jurisdiction
over non-CDA monetary claims properly raised under
§ 1491(a)(1). Cf. Sergent’s Mech. Sys., Inc. v. United States,
157 Fed. Cl. 41, 54 (2021) (“[T]he Court readily acknowl-
edges that nothing precludes a party from including both a
CDA claim and an action pursuant to § 1491(b) in the same
complaint.”).
For two reasons, we disagree with the trial court’s im-
plicit conclusion that its § 1491(a)(1) jurisdiction is una-
vailable. First, although Boeing raised its illegal exaction
claim in its certified CDA claim, it alleged the claim in its
complaint as an alternative theory for damages “to the ex-
tent [the trial court] concludes that Boeing has no remedy
in contract.” J.A. 52. Count IV was therefore appropriately
raised as a separate, independent, and alternative basis for
Boeing to seek relief. See RCFC 8(d)(2). While Counts I, II,
and III involve Boeing’s contract claims and should thus all
be resolved under the exclusive dispute mechanism of the
CDA, that is not the case for Boeing’s separate claim for
illegal exaction. Instead, Count IV was properly asserted
under the Court of Federal Claims’s § 1491(a)(1) jurisdic-
tion, see Boeing, 968 F.3d at 1383, and should have been
adjudicated accordingly.
Second, the trial court and the government misinter-
pret our holdings in Dalton and its progeny. Dalton simply
stands for the proposition that when claims are properly
raised under the CDA, alternative dispute mechanisms not
provided for by Congress are inapplicable. See Dalton, 50
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BOEING COMPANY v. US 15
F.3d at 1017–18 (discussing how Congress intended for the
CDA to apply). However, Dalton does not stand for the
proposition that the Court of Federal Claims must relin-
quish its statutorily authorized § 1491(a)(1) jurisdiction
over certain properly raised claims merely because it can
also exercise its jurisdiction under the CDA over other
claims in the same action. Nor is such a scenario implicated
by Dalton. In Dalton, whether Congress intended the
agency board to have authority over the contract-related
transportation dispute turned on whether the CDA or
§ 3726 applied (i.e., if the CDA did not apply, Congress did
not intend for the agency board to have jurisdiction). But
here, unlike in Dalton, Congress clearly provided the Court
of Federal Claims with specific jurisdiction over contract
claims arising under the CDA, see 41 U.S.C. § 7104(b); see
also 28 U.S.C. § 1491(a)(2), as well as jurisdiction over “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). Therefore, although the CDA (and
the trial court’s exclusive jurisdiction thereunder) serves as
the exclusive mechanism of dispute resolution for Boeing’s
contract claims, the Court of Federal Claims may neverthe-
less still exercise its statutory authorized jurisdiction over
Boeing’s non-contract claim, i.e., its illegal exaction claim,
that is properly raised under 28 U.S.C. § 1491(a)(1). This is
not inconsistent with Dalton.
Section 1491(a)(2) of the Tucker Act, and § 704(b) of the
CDA provide the Court of Federal Claims with exclusive
jurisdiction over Boeing’s contract claims. Sec-
tion 1491(a)(1) of the Tucker Act provides the Court of Fed-
eral Claims with jurisdiction over Boeing’s alternative
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BOEING COMPANY v. US 16
illegal exaction claim.2 Therefore, the Court of Federal
Claims legally erred in dismissing Boeing’s claims.
IV
Because we conclude that the Court of Federal Claims
has jurisdiction over Boeing’s contract claims and illegal
exaction claim, we reverse the trial court’s dismissal of
Counts I, II, and III without prejudice and its dismissal of
Count IV with prejudice. We remand the case to the trial
court for further proceedings consistent with our holding in
this opinion.
REVERSED AND REMANDED
COSTS
Costs to Appellant.
2 To the extent that Boeing argues that an illegal ex-
action claim can be properly raised under the CDA, because
we conclude the trial court has proper jurisdiction to reach
the merits of the claim under its § 1491(a)(1) jurisdiction,
we do not reach this issue.
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