_________________________________________________________ DISMISSED FOR LACK OF JURISDICTION: December 22, 1995 _________________________________________________________ GSBCA 13134(11595)-REIN BONNEVILLE ASSOCIATES, LIMITED PARTNERSHIP & MACHAN HAMPSHIRE PROPERTIES, LTD., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Martin E. Seneca, Jr., Reston, VA, counsel for Appellant. Kevin S. Anderson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and HYATT. HYATT, Board Judge. This appeal challenges a contracting officer's decision demanding payment of $5,195,069 in connection with a contract under which Bonneville Associates, Limited Partnership sold a building to the General Services Administration (GSA) and agreed to perform certain repairs and alterations to the building. The underlying dispute between the parties arises from an alleged breach by Bonneville of the purchase agreement's warranty of structural integrity and from the failure to perform repairs as required. GSA has filed a motion to dismiss Bonneville's appeal for lack of jurisdiction. For the reasons stated below, we grant the motion. Background On September 30, 1987, Bonneville and GSA entered into a contract under which GSA purchased an office building in Las Vegas, Nevada, from Bonneville. The contract obligated Bonneville to make substantial repairs and alterations to the building to render it suitable for government use. Controversies concerning the repairs and alterations arose between the parties after the Government took title to the building. For the most part, these disputes focused on the floor load capacity of the building and the operation of the heating, ventilation, and air conditioning (HVAC) units. See Bonneville Associates v. United States, 43 F.3d 649, 651 (Fed. Cir. 1994). After four years of unsuccessful settlement negotiations, the GSA contracting officer issued a decision, on August 21, 1991, demanding $5,195,069 from Bonneville for the cost of correcting the structural defects and remedying the deficiencies in the HVAC units. That decision notified Bonneville of its right to appeal either to the General Services Administration Board of Contract Appeals within ninety days, or to the United States Claims Court (now the United States Court of Federal Claims) within twelve months. Appeal File, Exhibit 42. On November 19, 1991, ninety days after receipt of the contracting officer's decision, Bonneville filed a timely notice of appeal at the Board. Bonneville then filed a motion to withdraw its appeal on January 8, 1992. Respondent did not oppose the motion and on January 17, 1992, the Board, pursuant to its Rule 28(a)(1), providing for the voluntary dismissal of pending actions, dismissed the appeal without prejudice. Bonneville filed a complaint, challenging the same decision of the contracting officer, in the United States Claims Court on January 13, 1992. The Government moved to dismiss Bonneville's complaint for lack of subject matter jurisdiction, arguing that under the judicially-created "election doctrine" Bonneville's prior appeal to the Board was a binding choice of forum that deprived the court of jurisdiction. Bonneville countered that the primary purpose of the contract was the Government's procurement of real property and, therefore, that the transaction was excluded from the Board's jurisdiction under the Contract Disputes Act of 1978 ("CDA").[foot #] 1 See 41 U.S.C. 602(a)(1) (Supp. V 1993) (contracts for the "procurement of . . . real property" are exempt from the CDA). Bonneville argued that, because the Board lacked jurisdiction, the election doctrine did not apply. On November 22, 1993, the Court of Federal Claims determined that the Board did have subject matter jurisdiction over Bonneville's claim because the dispute arose under the repair clause of the dual purpose contract, which was governed by the CDA. Bonneville Associates v. United States, 30 Fed. Cl. 85, 88 (1993) (citing Forman v. United States, 767 F.2d 875, 879 (Fed. Cir. 1985) (board of contract appeals has jurisdiction over dual- ----------- FOOTNOTE BEGINS --------- [foot #] 1 Pub.L. No. 95-563, 92 Stat. 2383, codified as amended at 41 U.S.C. 601-613 (1988 & Supp. V 1993). ----------- FOOTNOTE ENDS ----------- purpose contract for the construction and lease of real property)). The court thus concluded that the election doctrine required dismissal of the case without prejudice for lack of subject matter jurisdiction. 30 Fed. Cl. at 87-89. Bonneville appealed this decision to the United States Court of Appeals for the Federal Circuit. On December 19, 1994, the Court of Appeals affirmed the lower court's decision, holding that the Board did have jurisdiction over Bonneville's appeal and that the Court of Federal Claims had correctly applied the election doctrine to dismiss Bonneville's action for lack of subject matter jurisdiction. Bonneville Associates v. United States, 43 F.3d 649 (Fed. Cir. 1994).[foot #] 2 Following the issuance of the Federal Circuit's decision, Bonneville, on December 29, 1994, sought to reinstate its appeal at the Board pursuant to Rule 28(a)(2). At the time Bonneville's appeal was dismissed in 1992, this provision stated that a case dismissed without prejudice, and not reinstated within three years or a shorter-prescribed period from the date of the dismissal, would be deemed dismissed with prejudice at the conclusion of the applicable period. 48 CFR 6101.28(a)(2)(1991). Discussion GSA has moved to dismiss Bonneville's "reinstated" appeal as time-barred under the CDA's ninety-day time limit for bringing an appeal to the Board. It is GSA's contention that the Board's Rule 28, governing voluntary dismissals of cases, cannot be construed to permit Bonneville to pursue its appeal at this point in time. Rather, GSA maintains, the Board's order dated January 17, 1992, dismissing Bonneville's appeal without prejudice, operated in much the same manner as a dismissal under Federal Rule of Civil Procedure (FRCP) 41(a),[foot #] 3 which ----------- FOOTNOTE BEGINS --------- [foot #] 2 Bonneville states that the Court of Federal Claims, during oral argument, asked the Government whether the Board would retain jurisdiction to hear the appeal should the court dismiss the case. The Government's response was noncommittal. According to Bonneville, a similar inquiry was made by the Court of Appeals. Regardless, the interest expressed by these courts in the context of oral arguments does not confer jurisdiction upon the Board. [foot #] 3 FRCP 41(a) provides: (a) Voluntary Dismissal: (a) Voluntary Dismissal: (1) By Plaintiff; by Stipulation. Subject to the ______________________________ provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of the court (continued...) ----------- FOOTNOTE ENDS ----------- places the parties in the same position as if the action had never been brought. As such, GSA argues that the use of Rule 28(a)(2) to reinstate this appeal contravenes the ninety-day appeal period established under the CDA.[foot #] 4 In ----------- FOOTNOTE BEGINS --------- [foot #] 3 (...continued) (i) by filing notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or any state an action based on or including the same claim. (2) By Order of Court. Except as provided in ____________________ paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for the independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. [foot #] 4 The Contract Disputes Act, at 41 U.S.C. 605(b), provides: Decision by the contracting officer . . . (b) The contracting officer's decision on the claim shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency, unless an appeal or suit is timely commenced as authorized by this Act. Nothing in this Act shall prohibit executive agencies from including a clause in government contracts requiring that pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer's decision. 41 U.S.C. 606 provides: (continued...) ----------- FOOTNOTE ENDS ----------- support of its position, GSA cites Inslaw, Inc., DOTBCA 1609 et. al., 92-1 BCA 24,550, at 122,501-02, which, in dicta, suggested the possible invalidity of a similar Department of Transportation Board of Contract Appeals rule which, like the GSBCA rule relied upon by appellant, provided that actions dismissed without prejudice may be reinstated within three years. In sum, GSA asserts that Bonneville's December 29, 1994 filing is effectively a new appeal and is thus untimely under the CDA. In response to the Government's motion to dismiss, Bonneville maintains that a dismissal without prejudice pursuant to Rule 28(a)(2) does not have the same effect as a voluntary dismissal under the FRCP 41(a). Bonneville asserts that, in this case, the dismissal without prejudice is analogous to a suspension of proceedings and that the Board retains jurisdiction until a specific time has elapsed, at which time the dismissal converts to a dismissal with prejudice. Therefore, Bonneville argues, its second filing on December 29, 1994 related back to the date of the first filing and should not be deemed untimely under the CDA. The arguments of the parties are best understood in light of the historical development of these procedural rules. Before 1985, the GSBCA Rules of Procedure regarding dismissals without prejudice (then Rule 30) provided that a judge could dismiss an appeal without prejudice where it appeared that a case would be in suspense status for an inordinate length of time. 41 CFR 5A- 60.101 (1975) (Rule 30). Often, such dismissals were granted to accommodate parties' settlement efforts. Because the circumstances requiring this prolonged suspense status could sometimes take years to resolve, the Rule also provided for up to three years during which an appeal could be reinstated.[foot #] 5 The term "dismissal without ----------- FOOTNOTE BEGINS --------- [foot #] 4 (...continued) Contractor's right of appeal to board of contract appeals Within ninety days from the date of receipt of a contracting officer's decision under section 605 of this title, the contractor may appeal such decision to an agency board of contract appeals, as provided in section 607 of this title. [foot #] 5 From 1975 to 1984, the Board's then Rule 30, Dismissal Without Prejudice, provided: In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the suspension has continued, or it appears that it will continue, for an inordinate length (continued...) ----------- FOOTNOTE ENDS ----------- prejudice" was not intended to be used in the same manner as the term is often used under FRCP 41(a) -- Voluntary Dismissal -- treating the action "as if it had never been brought." Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959). Rather, it was intended that the case would be "reinstated" to the same procedural posture as if the dismissal had never occurred.[foot #] 6 See, e.g., University Research Corp., GSBCA 9079, 88-2 BCA 20,718, at 104,684 (although the Board declined to reinstate appeal when appellant filed motion for reinstatement after the expiration of three years from the date of the dismissal without prejudice, its prior order had stated: "Pending settlement, all proceedings in the appeals have been suspended. In these circumstances, it is appropriate to dismiss these appeals but to allow reinstatement if settlement should not be effected." University Research Corp., GSBCA 6279- ED, 1983 WL 13196); Dawson Construction Co., GSBCA 5550, 1981 WL 7475 (Sept. 30, 1981) (dismissing appeal without prejudice subject to reinstatement within ninety days should the parties' settlement agreement not be consummated). In 1985, the GSBCA Rules of Procedure were amended. Former Rule 30 was divided into two rules, renumbered as Rule 27(c) -- Dismissal in Lieu of Stay or Suspension, and Rule 28(a) -- Voluntary Dismissal. 48 CFR 6101.27, 6101.28 (1985). Rule 28(a) under the 1985 Rules was worded to closely resemble FRCP 41(a) -- Voluntary Dismissals. See International Business Machines Corp., GSBCA 8834-P, 1987 WL 40647 (Feb. 12, 1987) (acknowledging that Rule 28(a)(2) is based upon FRCP 41). The 1985 versions of GSBCA Rules 27(c) and 28(a) provide in pertinent part: 6101.27 (Rule 27) . . . . (c) Dismissal in lieu of stay or suspension. When circumstances beyond the control of the Board prevent the continuation of proceedings in a case, the Board ----------- FOOTNOTE BEGINS --------- [foot #] 5 (...continued) of time, the Board may in its discretion dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal will be deemed with prejudice. 41 CFR 5A-60.101 (1975). [foot #] 6 Black's Law Dictionary states that "to reinstate ______________________ a case" means "[t]o place again in same position as before dismissal." Black's Law Dictionary 1287 (6th ed. 1990) (citing ______________________ United States v. Green, 107 F.2d 19, 22 (9th Cir. 1939)). ______________________ ----------- FOOTNOTE ENDS ----------- may in lieu of issuing an order suspending proceedings, dismiss the case without prejudice to reinstatement. Such a dismissal may require reinstatement by a date certain or within a certain period of time after the occurrence of a specified event. If the order of dismissal does not otherwise provide, it will be subject to the provisions of 6101.28(a) [Rule 28]. 6101.28 (Rule 28) (a) Voluntary dismissal. (1) Upon motion of the appellant or by stipulation of the parties, a case may be dismissed by the Board. Unless otherwise stated in the appellant's motion or in the stipulation, the dismissal is without prejudice, except that such dismissal operates as an adjudication upon the merits when requested by an appellant whose case based on or including the same claim has previously been dismissed by the Board. (2) When a case has been dismissed without prejudice and has not been reinstated by the Board upon application of any party within three years of the date of dismissal, or within such shorter period as the Board may prescribe, the case shall be deemed to have been dismissed with prejudice as of the expiration of the applicable period. 48 CFR 6101.27, 6101.28 (1985).[foot #] 7 ----------- FOOTNOTE BEGINS --------- [foot #] 7 In 1994, the Boardamended Rule 28 - Dismissals - to its present form: (a) Generally. A case may be dismissed by the Board _________ on motion of any party. A case may also be dismissed for reasons cited by the Board in a show cause order to which response has been permitted. Every dismissal shall be with prejudice to reinstatement of the case unless a dismissal without prejudice has been requested by a party or specified in a show cause order. (b) Dismissal without prejudice. When a case has been ___________________________ dismissed without prejudice to its reinstatement and no party has requested, within the period specified in this paragraph, that the case be reinstated, the case shall be deemed to have been dismissed with prejudice as of the expiration of 10 working days of the date of dismissal in a protest, 180 calendar days of the date of dismissal in any other kind of case, or such other period as the Board may prescribe. (c) Issuance of order. An order of dismissal shall be _________________ issued by the panel of judges to which the case has (continued...) ----------- FOOTNOTE ENDS ----------- Unlike previous versions of the Rules, the 1985 and subsequent revisions contemplate dismissals not only when the Board wishes to remove the case from suspense status or to accommodate settlement negotiations or unusual extenuating circumstances, but also when the appellant no longer intends to pursue the action at the Board. The latter is the common understanding of a "voluntary dismissal without prejudice" as used in FRCP 41. Bonneville argues that, in this instance, the dismissal without prejudice was not analogous to FRCP 41(a), but is analogous to a suspension of proceedings because the order contemplated the reinstatement of the appeal. This contention is unconvincing. The order itself merely dismissed the appeal -- it was silent as to reinstatement. Bonneville requested that its appeal be dismissed in order that it might file the identical suit in the United States Claims Court (Court of Federal Claims). Bonneville then proceeded to argue in the Court of Federal Claims and at the Court of Appeals for the Federal Circuit, in opposition to the Government's motion to dismiss, that this Board did not have jurisdiction over its appeal in the first instance. Bonneville Associates v. United States, 30 Fed. Cl. 85 (1993) and Bonneville Associates v. United States, 43 F.3d 649 (Fed. Cir. 1994). At the time Bonneville moved to withdraw the appeal, issue had not yet been joined. As a practical matter, there were no proceedings to be stayed. Thus, Bonneville's request to dismiss its appeal without prejudice had the same effect as a dismissal without prejudice under Rule 41(a) of the Federal Rules of Civil Procedure -- to remove the appeal from the Board completely. Where the term "dismissal without prejudice" is being used in the same manner as it is used in FRCP 41(a) -- Voluntary Dismissals, it is appropriate to consider cases construing FRCP 41(a) to determine the effect of such dismissals. See Computer Dynamics, Inc., GSBCA 10288-P(10209-P), 90-1 BCA 22,328, at 112,222, 1989 BPD 294 ("[R]ule [28(a)(2)] has much in common with Rule 41(a) of the Federal Rules of Civil Procedure -- rules to which we look for guidance in interpreting our own rules."). As stated in Computer Dynamics: "Under F.R.C.P. 41(a), '[a] voluntary dismissal without prejudice leaves the situation as if the action had never been filed. After a dismissal the action is no longer pending in the court and no further proceedings in the action are proper.'" Id., citing Long v. Board of Pardons and ----------- FOOTNOTE BEGINS --------- [foot #] 7 (...continued) been assigned if the motion is contested or if the Board is acting consequent to its own show cause order. An order of dismissal may be issued by the panel chairman alone if the motion to dismiss is not contested. 48 CFR 6101.28 (1994). ----------- FOOTNOTE ENDS ----------- Paroles of Texas, 725 F.2d 306, 307 (5th Cir. 1984). Accord Curtis v. United Transportation Union, 648 F.2d 492, 495 (8th Cir. 1981)("Rule 54(b) does not provide an exception . . . to the rule that the entry of a voluntary dismissal without prejudice leaves the action as if the suit had never been brought for purposes of the statute of limitations."); Bomer v. Ribicoff, 304 F.2d 427, 428 (6th Cir. 1962) (an action dismissed without prejudice leaves the situation as if the suit had never been brought); Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959) ("suit dismissed without prejudice pursuant to Rule 41(a)(2) leaves the situation the same as if the suit had never been brought."). Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), involving an appellant's attempt to refile an appeal which was dismissed without prejudice after the expiration of a statutory time limit, is particularly on point. In Bomer, the appellant had timely filed an action in United States District Court seeking review of a Hearing Examiner's denial of appellant's claim for increased benefits under the Social Security Act. Several months later, the Bomer appellant filed a motion to dismiss the complaint without prejudice. Nearly a year later, the appellant filed the same action for administrative review of the Hearing Examiner's ruling in the same district court. The Government moved to dismiss the action, arguing that the appellant failed to commence the action within the sixty day period after notice of the final decision of August 4, 1959, as required by 42 U.S.C. 405. Id. at 428. Invoking the general rule that "[a]n action dismissed without prejudice leaves the situation the same as if the suit had never been brought," the court agreed that the action had to be dismissed. The court explained that where the right of action sought to be enforced is one created by statute and is limited by the provisions of the statute as to the time within which the right must be asserted, such conditions operate as a condition of liability rather than as a period of limitation and there can be no recovery unless the condition precedent is fulfilled. Id. at 429. As a result, the court held that "not having filed the present action to review the adverse administrative ruling within the sixty days provided by statute, the right provided by statute ceased to exist, and the present action was properly dismissed." Id. Like the appellant in Bomer, Bonneville here attempts to refile an appeal which was dismissed without prejudice after the expiration of a statutory time limit. Our appellate authority has made clear that the ninety-day statutory filing period provided in the CDA is jurisdictional and, like the sixty-day limit in Bomer, must be strictly construed. See Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982) (Armed Services Board of Contract Appeals lacked jurisdiction to waive the ninety-day period provided for in 41 U.S.C. 606). Additionally, it is well settled that" '[a]n authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge its jurisdiction.'" Widdoss v. Secretary of the Department of Health and Human Services, 989 F.2d 1170, 1177 (Fed. Cir. 1993), cert. denied, 114 S.Ct. 381, (citing United States v. Sherwood, 312 U.S. 584, 589-90 (1941)). Thus, a court or board "cannot, by rule or order, create exceptions to or otherwise waive or extend a limitations period established by statute. The terms of the Sovereign's consent to suit have long been considered jurisdictional." White Buffalo Construction, Inc. v. United States, 28 Fed. Cl. 145, 146 (1992). Therefore, the Board is not at liberty to construe Rule 28(a)(2) in such a way as to toll, extend, or waive the time period established by the CDA in which to appeal the decision of the contracting officer. Accordingly, because Bonneville voluntarily caused its appeal to be dismissed without prejudice in order to pursue the appeal in another forum, Bonneville is placed in the same position as if the first appeal had never been filed. The second filing does not relate back to the date of the first filing. Moreover, as the second complaint filed on December 29, 1994 is a "new appeal" filed after the expiration of the CDA ninety-day time limit, it is untimely. We lack jurisdiction to hear this appeal. Decision For the reasons stated, respondent's motion to dismiss is GRANTED. Appellant's appeal is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. _____________________________ CATHERINE B. HYATT Board Judge I concur: __________________________ EDWIN B. NEILL Board Judge DANIELS, Board Judge, dissenting. It must have been a decision like this one that caused Dickens's Mr. Bumble to say, "If the law supposes that, the law is a ass." C. Dickens, Oliver Twist at 520 (1943 Dodd, Mead & Co. ed.). The majority finds that the Board lacks jurisdiction to hear this case on the basis of a very limited set of facts. According to my colleagues, all we need to know to resolve this motion is the following: On August 21, 1991, a GSA contracting officer issued a decision asserting a claim under a contract between GSA and Bonneville. The decision informed Bonneville that review by an impartial adjudicator could be had if the contractor filed an appeal with this Board within ninety days or brought a direct action in the United States Claims Court within twelve months. Bonneville timely appealed the decision to the Board on November 19, 1991. The contractor moved to withdraw this case shortly thereafter, and on January 17, 1992, the Board dismissed the case without prejudice. Nearly three years later, on December 29, 1994, Bonneville moved to reinstate the appeal. The majority holds that the controlling principle in this case is that "a voluntary dismissal without prejudice leaves the situation as if the action had never been filed. After a dismissal the action is no longer pending in the court." Computer Dynamics, Inc., GSBCA 10288-P (10209-P), 90-1 BCA 22,328, at 112,222, 1989 BPD 294, at 3 (citing Long v. Board of Pardons & Paroles of Texas, 725 F.2d 306, 307 (5th Cir. 1984)). The filing of the motion for reinstatement was consequently, according to the majority, in effect the filing of the appeal for the first time. Because the Contract Disputes Act authorizes a contractor to appeal a contracting officer's decision to a board of contract appeals only if the appeal is filed within ninety days of the contractor's receipt of the decision, 41 U.S.C. 606 (1988), and the ninety-day filing period is jurisdictional and must be strictly construed, Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982), my colleagues conclude that this case was filed much too late for us to consider it. This position is built on a legal fiction -- that Bonneville never brought this case to us before it filed its motion for reinstatement. Such fictions are supposed to be founded in equity, and are wrongful if they work loss or injury to anyone. Louisville & Nashville R. Co. v. Public Service Comm'n of Tennessee, 389 F.2d 247, 250 n.1 (citing 3 William Blackstone, Commentaries 1553 (W. C. Jones ed.)); Black's Law Dictionary at 561 (5th ed. 1979) ("fictio legis inique operatur alicui damnum vel injuriam"). Legal fictions "are a clumsy device appropriate only to periods of growth in a partially developed political organization of society in which legislation on any large scale is not possible. . . . In a sense they were devised to conceal the substance when the substance was not regarded as of legal consequence." R. Pound, 3 Jurisprudence, 465-66 (1949) (cited in Louisville & Nashville R. Co., 389 F.2d at 250 n.1). A legal fiction should consequently not be applied mechanically. Costello v. Immigration & Naturalization Service, 376 U.S. 120, 130 (1964). Rather than following a fiction, a tribunal should "bring [its] analytical framework into conformity with practical realities." Hughes v. Oklahoma, 441 U.S. 322, 335 (1979). In particular, a fiction "cannot be indulged [where] it is negated by the facts." Parsons v. Smith, 359 U.S. 215 (1959); see also Faretta v. California, 422 U.S. 806, 821 (1975). The majority mentions, but does not recognize the importance of, some facts which are fundamental to this case. I set them out here. Bonneville moved the Board on January 8, 1992, to have its appeal dismissed without prejudice. We granted the motion pursuant to Board Rule 28(a). Our order did not prescribe a period of time within which the case could be reinstated. At the time, Rule 28(a) provided: When a case has been dismissed without prejudice and has not been reinstated by the Board upon application of any party within three years of the date of dismissal, or within such shorter period as the Board may prescribe, the case shall be deemed to have been dismissed with prejudice as of the expiration of the applicable period. 48 CFR 6101.28(a)(2) (1991). On January 13, 1992 -- even before the Board dismissed the case which had been pending here -- Bonneville filed suit in the Claims Court, appealing the same contracting officer decision. This date was well within the twelve months statute gave Bonneville for filing at the Claims Court. The contractor was concerned that the Board had never had jurisdiction over its challenge to the decision, since the Board's authority derives from the Contract Disputes Act of 1978 and contracts for the "procurement of . . . real property" are exempt from that Act. See 41 U.S.C. 602(a)(1) (1988). On November 22, 1993, the Court of Federal Claims[foot #] 1 determined that because the contract involved repairs and improvements to real property, and the dispute implicated only those matters, the Board had jurisdiction over the appeal filed with us. Bonneville Associates v. United States, 30 Fed. Cl. 85, 88 (1993) (citing Forman v. United States, 767 F.2d 875, 879 (Fed. Cir. 1985) (boards of contract appeals have jurisdiction over contracts with dual purpose of construction and lease of real property), 41 U.S.C. 602(a)(3) (Contract Disputes Act applies to contracts for the "procurement of construction, alteration, repair or maintenance of real property")). Under the "election doctrine," Bonneville's appeal to the Board was a binding choice of forum that deprived the ----------- FOOTNOTE BEGINS --------- [foot #] 1 The United States Claims Court was renamed the Court of Federal Claims, effective October 29, 1992. Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 902(a), 106 Stat. 4506, 4516 (1992). ----------- FOOTNOTE ENDS ----------- court of jurisdiction. The court consequently dismissed the suit Bonneville had brought to it. 30 Fed. Cl. at 89-90. Bonneville persisted in its belief that the Board never had jurisdiction over the case it had filed here. It appealed the decision of the Court of Federal Claims to the Court of Appeals for the Federal Circuit. On December 19, 1994, the Court of Appeals affirmed, expressly finding that the contract was, "in substantial part, one for the 'procurement of . . . alteration [and] repair' of real property," and thus "within the board's jurisdiction under 602(a)(3)." Bonneville Associates v. United States, 43 F.3d 649, 655 (Fed. Cir. 1994). Bonneville's motion for reinstatement was filed ten days after the Court of Appeals handed down its decision. As this history shows, Bonneville has now been told by both the Court of Federal Claims (the Claims Court's current name) and the Court of Appeals, that the Claims Court had no jurisdiction to hear the case because an appeal had previously been filed at this Board, which had the power to hear it. If these two courts had been willing to accept the legal fiction that our dismissal without prejudice left Bonneville's appeal as if it had never been made, they would have had to hold that the Claims Court had jurisdiction over the suit filed there, since that filing would have been the first and only election of forum by the contractor. Applying the fiction puts Bonneville in a Catch-22 situation: The two courts say the Claims Court had no jurisdiction to get to the merits of the case because the contractor filed here first, but my colleagues say the Board has no jurisdiction because Bonneville effectively never filed here until recently. Thus, the contractor will have no opportunity for review of the merits of the contracting officer's decision, even though it filed with both the Claims Court and the Board within the time limits set out in statute and noted in the decision. The substance of the fiction thus becomes of ultimate consequence, and application of it would cause irreparable injury to the appellant by preventing that party from having the merits of its case heard. A more reasonable solution to this predicament would be to resolve the situation by taking into account the facts that (a) Bonneville did file its notice of appeal with us in a timely fashion and (b) at all relevant times, the contractor has been attempting to litigate its claim before a proper forum. There are two alternative ways to do this. The first is to take the dismissal on its own terms. A dismissal without prejudice which contemplates further proceedings does not terminate the litigation. Peters v. Welsh Development Agency, 920 F.2d 438 (7th Cir. 1990). "In determining finality a court's analysis must focus on the underlying effect of a dismissal." Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1516 (11th Cir. 1985). Bonneville clearly asked in 1992 that its appeal to this Board be dismissed so that it could proceed in a forum which had jurisdiction over the case. Bonneville never sat on its rights; indeed, it filed in the Claims Court (which it believed to be such a forum) even before the case here was dismissed. In finding that Bonneville elected to have the Board hear this case, the courts expressly found that we have jurisdiction to consider it. Our giving effect to the terms of the dismissal order and exercising that jurisdiction will achieve an equitable finality to the litigation. This result is consistent with what the Eleventh Circuit said in Sigalas: Where a plaintiff is sent to another forum and later forced to return to the original forum, that party should "be heard even if the statute of limitations has already tolled in the original court." 776 F.2d at 1516. Even if this reasoning is thought to founder on the ninety- day statute of limitations for appealing a contracting officer's decision to a board of contract appeals, we could deny the Government's motion to dismiss on a different ground. Where a tribunal desists from hearing a case in order to permit a similar case to proceed in another tribunal, a stay of proceedings, not a dismissal, is the appropriate procedural mechanism to employ. Rosser v. Chrysler Corp., 864 F.2d 1299, 1308 (7th Cir. 1989) (a dismissal based on abstention of a Federal court so that a state court might hear the case was deemed an abuse of discretion; the case was remanded to the district court, with instructions to enter a stay). A stay avoids any problems which time bars might create; it permits the case to be heard on the merits in the first tribunal if that proves necessary. Id. If our earlier dismissal of this case poses an insuperable problem to hearing it, we could convert the dismissal to a stay, nunc pro tunc, and then lift that stay so that the case might now be heard. Board of Education of Valley View Community Unit School District No. 365U v. Bosworth, 713 F.2d 1316, 1322 (7th Cir. 1983); Evans Transportation Co. v. Scullin Steel Co., 693 F.2d 715, 717-18 (7th Cir. 1982). _________________________ STEPHEN M. DANIELS Board Judge