-----Original Message-----
From: Cyrus E. Phillips, IV [mailto:lawyer@procurement-lawyer.com]
Sent: Wednesday, August 20, 2003 9:57 AM
To: 
Subject: Amicus Support

This is a request for assistance, for an amicus filing before the Supreme Court. I have attached a draft copy of a cert petition that I will filed today or tomorrow. The issue I advance is extremely important to any private party that does federal business, and this issue concerns whether or not there is jurisdiction, either before an agency board of contract appeal, or in the United States Court of Federal Claims, to consider contract disputes that may arise under a particular federal contract.

In the case of mine, I was pursuing a contract claim on a contract with Federal Prison Industries. As you know, Federal Prison Industries operates on reimbursements that it receives from other federal agencies for the goods and services that it provides with prison industrial labor. The United States Court of Federal Claims, and the United States Court of Appeals for the Federal Circuit, tossed this case when they were persuaded that such operations (and they are very common throughout the federal government„hardly unique to Federal Prison Industries) are not paid from appropriated funds, ergo there is no jurisdiction (under the “non-appropriated funds” doctrine) to adjudicate claims under the Contract Disputes Act. I was unable, as of early June, to persuade the full court to re-think this matter, so I am left with a cert petition, and this I will file today or tomorrow.

The decision which I am asking the Supreme Court to review rejects long-held views of GAO, and of the D.C. Circuit, that revolving funds, or stock funds (we used to refer to these accounts as “X”ccounts), are to be treated as appropriated funds absent explicit language in enabling legislation, e.g. the language in the enabling legislation for the Federal Reserve Board. The upshot of this over-broad, and erroneous, decision of the Federal Circuit for which I am seeking review is that any contractor with a federal contract that has been funded out of the Defense Business Operations Fund (for instance) has no forum before which it can seek redress for a contract claim, and this although the contract, as my client’s contract with Federal Prison Industries, contains the standard Disputes clause.

The result is an entirely untenable situation that needs to be remedied with a Supreme Court decision, and this failing, then with legislation that resolves the problem that the Federal Circuit has created.

I hope that I can count on your support.

Thanks!

Cy Phillips