Free Motion to Dismiss - Rule 12(b)(6) - District Court of Federal Claims - federal

Case 1:06-cv-00683-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST __________________________________________ ) GENERAL INJECTABLES & VACCINES, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) No. 06-683C Defendant, ) ) (Judge Eric G. Bruggink) and ) ) MCKESSON SPECIALTY DISTRIBUTION, LLC, ) ) Defendant-Intervenor. ) __________________________________________) DEFENDANT'S MOTION TO DISMISS THIS ACTION AS MOOT Pursuant to Rules 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that the Court dismiss General Injectables & Vaccines' ("GIV") complaint because GIV's challenges to the override that resulted in the award of the contract to McKesson Specialty Distribution ("McKesson") have been rendered moot by the voluntary decision of the CDC to stay performance, for up to 90 (ninety) days, of the contract awarded to McKesson. Counsel for GIV advised the undersigned that GIV does not oppose this motion. Counsel for McKesson advised the undersigned that McKesson does not oppose the dismissal of this action upon the grounds of mootness, but reserves the right to file an alternative motion and proposed order. A case is moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Supreme Court has stated a two-part test for determining whether a

Case 1:06-cv-00683-EGB

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case has been rendered moot. A case is rendered moot if (1) "it can be said with assurance that there is no reasonable expectation that the alleged violation will recur;" and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1975) (citations omitted). On October 25, 2006, the Centers for Disease Control ("CDC") voluntarily issued a Stop Work Order that stays performance, for up to 90 (ninety) days, of the contract awarded to McKesson. A copy of the Stop Work Order is attached as Exhibit A. Accordingly, the precise relief requested by GIV in its complaint has been voluntarily afforded by the CDC and, in light of that remedial action, this protest should be dismissed and GIV's request for declaratory and injunctive relief should be denied as moot. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director

/s/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director

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Case 1:06-cv-00683-EGB

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OF COUNSEL: ELISE HARRIS Assistant Regional Counsel U.S. Department of Health and Human Services 61 Forsyth Street, S.W. Suite 5M60 Atlanta, GA 30303 /s/ Delisa M. Sánchez DELISA M. SANCHEZ Trial Attorney U.S. Department of Justice Civil Division Commercial Litigation Branch 1100 L St., N.W. ATTN: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 616-0337 Facsimile: (202) 305-7643 Attorneys for Defendant

Filed electronically, October 26, 2006

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Case 1:06-cv-00683-EGB

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CERTIFICATE OF FILING I hereby certify that on this 26th day of October, 2006, a copy of the foregoing "DEFENDANT'S MOTION TO DISMISS THIS ACTION AS MOOT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Delisa M. Sánchez DELISA M. SANCHEZ