Free Order - District Court of Delaware - Delaware

Case 1 :05-cv—00820-KAJ Document 20 Filed 10/10/2006 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
C&D CONTRACTORS, INC., )
Petitioner, g
v. g Civil Action No. 05-820-KAJ
TONI WILSON, ;
Respondent. g
)
MEMORANDUM ORDER
I. INTRODUCTION
Before me is a Petition for Writ of Mandamus, filed by C&D Contractors, Inc.
("C&D"). (Docket Item ["D.l."] 1; the “Petition".) C&D requests that the respondent, Toni
Wilson ("Wl|son"), be ordered to schedule and perform Alternative Dispute Resolution
("ADR") with C&D, or terminate the ADR process pursuant to the Contract Disputes Act
(“CDA"), 41 U.S.C. § 601, et seq. (D.|. 1 at 5.) In response, Ms. Wilson filed a motion
to dismiss for lack of subject matterjurisdiction and for failure to state a claim upon
which relief can be granted. (D.I. 4.) For the reasons that follow, C&D’s Petition will be
denied in all respects.
ll. BACKGROUND‘
C&D was a subcontractor on a construction project involving the Veterans
Administration Hospital in Wilmington, Delaware. (D.|. 6 at 3.) In attempting to recover
payment for the services it performed, C&D dealt directly with the Department of
‘The following background information is taken from the parties' submissions and
does not constitute findings of fact.

Case 1 :05-cv—00820-KAJ Document 20 Filed 10/10/2006 Page 2 of 4
Veterans Affairs (“VA"). (ld. at 4-5.) Specifically, C&D communicated with Ms. Wilson,
a Contracting Officer for the VA. (ld. at 3.) C&D alleges that it accepted Ms. Wllson’s
offer to participate in ADR in June 2003, and that Ms. Wilson then continually delayed
the process. (ld. at 4-5.) As a result, C&D filed the Petition seeking an order that would
direct Ms. Wilson to immediately proceed with ADR or terminate the process, so that
C&D could pursue other avenues of recovery. (ld. at 5-6.)
lll. DISCUSSION
As discussed above, the Petition asks the court to compel Ms. Wilson to either
perform ADR with C&D, or terminate the ADR process pursuant to the CDA. (D.|. 1 at
5.) C&D argues that, according to Section 605(e) of the CDA, Ms. Wilson must
terminate the ADR process by providing "a written explanation, citing specific reasons
that alternative dispute resolution procedures are inappropriate for the resolution of the
dispute." (D.|. 6 at 7-8.) According to Ms. Wilson, the ADR process`was terminated on
January 10, 2006, when she mailed a letter to C&D stating that the VA would not
engage in ADR with C&D. (D.I. 7, Ex. 1.) The letter specified that "such procedures
are inappropriate for the resolution of the dispute because there has never been
privity of contract between the VA and C&D with respect to the matter in dispute." (Id.)
The letter satisfies C&D’s request because it is a written explanation that sets forth a
specific reason why ADR is inappropriate.
A court need not decide the merits of a case if "[a]ction by the defendant []
simply accords all the relief demanded by the plaintiff [s]o long as nothing further
would be ordered by the court." 13A Charles Alan Wright, Arthur R. Miller & Edward H.
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Cooper, Federal Practice and Procedure § 3533.2 at 238 (2d ed. 1984). By terminating
the ADR process in the manner specified by C&D, Ms. Wilson provided the relief
requested by C&D, and thus, no court order is need to compel such action. C&D also
asks that the court maintain jurisdiction over this action to ensure Ms. Wilson’s
compliance. (D.I. 1 at 5.) However, no oversight by the court is necessary because
Ms. Wilson has already terminated the ADR process.
Finally, C&D requests that it be awarded the costs of this proceeding. (ld.)
Under the Equal Access to Justice Act ("EAJA"), "costs, , but not including the fees
and expenses of attorneys, may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or any official of the United
States acting in his or her official capacity in any court having jurisdiction of such
action." 28 U.S.C. § 2412(a)(1). According to U.S. Supreme Court precedent, a
plaintiff is only considered a "prevai|ing party" under the EAJA if the court orders some
relief; a voluntary change in the defendant’s conduct is not sufficient. MoriIIo—Cedron v.
Dist. Din for the U.S. Citizenship and Immigration Sen/s., 452 F.3d 1254, 1257-58 (11th
Cir. 2006) (applying the holding in Buckhannon Bd. and Care Home, Inc. v. W. Va.
Dep’t of Health and Human Res., 532 U.S. 598, 605 (2001), to costs awarded under 28
U.S.C. § 2412(a)(’|)); S9/ect Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C.
Cir. 2005) (same); Perez—Arellano v. Smith, 279 F.3d 791, 793-94 (9th Cir. 2002)
(same). In this case, the court has made no decision regarding the merits of C&D’s
Petition and has not ordered any relief. Rather, Ms. Wilson voluntarily terminated the
ADR process. (D.I. 7, Ex. 1.) Therefore, regardless of whether the court has
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jurisdiction in this action,2 costs may not properly be awarded to C&D under the EAJA.
Accordingly, since C&D has already obtained the relief that it requested and the court
will order nothing further, I will deny the Petition as moot.
IV. CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that the
Petition is DENIED.
U ITE STATES DI RICT DGE
October 10, 2006
Wilmington, Delaware
2Since I do not address the substantive merits of the Petition or order any relief, I
also do not decide whether the court has subject matterjurisdiction in this case.
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