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3 min read

CBCA Denies Independent Contractor's Appeal for Employee Benefits

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In a worker classification dispute, John Douglas Burke has raised concerns regarding his entitlement to additional compensation beyond what he received under a series of purchase orders with the National Institutes of Health (NIH). This case brings attention to the issue of the classification of independent contractors and their eligibility for employee benefits. Let's delve into the details of Burke's argument and the subsequent legal proceedings.

Background and Arguments

Burke asserts that he was effectively serving as a federal civil service employee during his tenure with NIH and therefore should have received the salary and benefits associated with that position, rather than the hourly rates outlined in his contracts. However, NIH's contracting officer denied his claim, leading Burke to appeal to the Civilian Board of Contract Appeals (CBCA).

NIH filed a motion to dismiss Burke's appeal, citing failure to state a claim on which relief can be granted. This argument draws a parallel with the Federal Circuit's rejection of similar claims in the Lee v. United States case. Despite Burke's belief that his circumstances are more compelling, the CBCA ruled in favor of the Federal Circuit's decision in Lee, thereby dismissing Burke's appeal.

Contested Purchase Order Terms

Burke's first purchase order with NIH, dated July 20, 2015, lacked specific details about the work he was required to perform. NIH argues that additional documents, such as the statement of work (SOW) and statement of need (SON), encompass the purchase order. Burke maintains that he never saw these documents before they were submitted to the CBCA.

Burke also claims to have assisted on other projects not explicitly covered by his purchase orders. As he was the only bench scientist hired under a purchase order, Burke asserts that all other bench scientists were NIH employees or employees of other agencies with similar pay and benefits. Furthermore, Burke alleges that his complaint to the NIH Office of the Ombudsman regarding a COVID return-to-work matter played a role in the denial of another purchase order.

The Denial and Appeals

In response to his concerns, Burke submitted a certified Contract Disputes Act (CDA) claim to the NIH contracting officer, seeking $414,493 in payment that he believed he was entitled to. However, the contracting officer denied Burke's claim, stating that he had been fully compensated according to the contracts, with no guarantee of appointment as a federal employee.

Burke proceeded to file a notice of appeal with the CBCA, followed by an amended complaint. NIH countered with a motion to dismiss Burke's appeal for failure to state a claim. The CBCA assessed this motion, referring to the Federal Rules of Civil Procedure for guidance, and concluded that Burke's appeal lacked a valid claim on which relief could be granted.

Legal Interpretations and Rejected Claims

Burke argues that the express terms of the purchase orders are invalid due to his misclassification as an independent contractor when he functioned as a federal employee. He draws support from the Federal Circuit's decision in Lee, which deemed certain services contracts as illegal personal services contracts due to the nature of work performed. However, the CBCA highlights that a contractor cannot raise a contract's defect after remaining silent before the award, especially with the intent to increase the contract price.

The CBCA further determines that Burke's attempted elimination of the hourly rates specified in his purchase orders and the substitution of higher rates would violate standard contract interpretation principles. While acknowledging an exception that allows contractors to seek contract reformation in the event of a violation of a law enacted for their protection, the CBCA concludes that Burke's contract does not constitute a "personal services" contract based on the absence of direct government supervision.

Burke's appeals for compensation under an implied-in-fact contract, enforcement of the indefinite terms, and relief under the theory of unjust enrichment are rejected by the CBCA. The board lacks jurisdiction over implied-in-law contract claims and direct relief under the statutes cited by Burke.


Despite John Douglas Burke's claims that he should be entitled to additional compensation and benefits as a federal employee, the Civilian Board of Contract Appeals dismissed his appeal. This case highlights the ongoing disputes regarding worker classification and the complexities involved in determining the appropriate status for workers. As the legal landscape continues to evolve, it is essential for organizations and contractors to understand and adhere to the prevailing guidelines to avoid such conflicts.