Free Notice (Other) - District Court of Federal Claims - federal

Case 1:04-cv-01389-GWM

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PAUL K. CHARLTON United States Attorney District of Arizona MICHAEL A. JOHNS Assistant U.S. Attorney Arizona State BarNo. 3803 Two Renaissance Square 4o N. CentralAvenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Of Counsel: MARION T. CORDOVA D.C. Bar No. 39113 US Department of Agriculture 14'h& Independence, SW Room 3329D Washington, DC 20250 Telephone: (202) 720-4978

9 10 11 12 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant "Complaint U.S. Department Service, Fire-Trol Holdings, LLC, Plaintiff,

UNITED

STATES DISTRICT COURT

DISTRICT ARIZONA OF

CIV-03-2039-PHX-JAT MOTION TO DISMISS FOR LACK OFSUBJECT MATTER JURISDICTION Forest

of Agriculture

Defendant.

U.S. Department

of Agriculture,

Forest Service, moves the Court to dismiss the Injunction" pursuant to Rule 12(b)(1), Federal This Motion is

for Declaratory

Relief and Permanent

Rules of Civil Procedure, supported by the following

because the Court lacks subject matter jurisdiction. Memorandum. MEMORANDUM

The Complaint is replete with allegations designed to persuade the Court into thinking that this action is something other than a procurement bid protest; albeit, perhaps, a premature one.

The first sentence states the following: This is an action seeking review of final decisions by the United States Forest Service ( 'USFS ) to proh!bit the use, of sodium ferrocyanide (also known as yellow prussiate of soda, or "yp Soda or "YPS ) and to require the use of a gum thickener in wildland fire retardant products sold to the USFS for use in fighting forest fires. The Complaint then goes on to state the following:

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The effect of the USFS' rulemaking is to limit the bidding for wildland fire retardant products to one bidder, in violation of the Competition in Contracting Act, thus creating a monopoly supplier of wildland fire retardant products to governmental agencies, in particular theBureau of Land Management ("BLM") and the USFS. The Forest Service ("FS") lacks legal authority to prohibit or ban the use of sodium ferrocyanide, and has not taken any action that could reasonably be construed as a prohibition use or sale of fire retardants ferrocyanide containing sodium ferrocyanide. or ban on the

Plaintiff is free to use sodium such products. Plaintiff

in any of its products, and the public is free to purchase

cannot show that the FS made any attempt to prohibit it from making or selling fire retardants that contain sodium ferrocyanide. A more accurate statement of what the FS has done is this: the FS made a procurement decision that it will not procure for Government ferrocyanide, use wildland fire retardants that contain sodium use wildland fire retardants that do not and

nor will the FS procure for Government

contain a thickening

agent. Neither of these actions amounts to a prohibition related to government procurement

or rulemaking,

both actions are exclusively

contract solicitations. requirements Procedure prior to issuing a Act ("APA"). For

When a Federal Agency determines solicitation, that is not a "rulemaking"

its own procurement under the Administrative

example ifa Government

agency determines

that latex paint meets its requirement,

whereas oil-

based paint does not, such a decision is not a rule, nor is it a prohibition paints. The decision is simply a determination determination, if in connection of the agency requirement. with a Government

or ban on oil-based Challenges current to that

procurement procurement

or proposed Fireany

of goods or services, would appear to constitute discusses a solicitation procurement

a bid protest.

(Although

Trol's complaint current

in the Fall of 2003, the complaint involving

does not challenge

Government

or solicitation

the issue that it raised

in the

complaint.)

This Court, however, lacks jurisdiction

over bid protests. fire retardants environmental that contain risk. Further,

The FS has determined sodium ferrocyanide, the FS has determined

that it no longer will procure wildland

because such products present an avoidable that viscous or thickened 2 fire retardants

perform better than water-like

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or unthickened

fire retardants

when dropped from aircraft, and for that reason the FS will no wildland fire retardants. requirements, These findings are part of the agency

longer procure unthickened determination procurement

of its own procurement

and as such relate solely to the agency

to satisfy its own needs, and do not affect what a contractor chooses to manufacture

or sell in the open market. Fire-Trol, the Plaintiff, objects to the agency determination attempting to substitute its own judgment of its own requirements, and is

that the FS should continue to procure fire retardants A challenge to a Federal agency

that contain sodium ferrocyanide, determination determined capricious

and are unthickened. requirement

of its own procurement

is in essence a claim that the agency has law or regulation, or in an arbitrary or or of

its own needs in violation of a procurement manner. Challenges alleging a violation

of a procurement

statute or regulation, procurement

alleging an arbitrary or capricious goods or services, are bid protests.

decision in connection

with a Government

In Scanwell Lab., Inc. v. Shaffer, 137 U.S. App. D.C. 371,424 the U.S. Court of Appeals for the D.C. Circuit, determined jurisdiction to entertain challenges to agencyprocurement Procedures Act (APA).

F.2d 859 (D.C. Cir. 1970), Courts had

that U.S. District

decisions - that is, bid protests - under 30, 1996, Congress 1/ passed the

the Administrative Administrative

On September

Dispute Resolution Act of 1996 ("ADRA").

In ADRA Congress in effect

codified the Scanwelljurisdiction,

granting express authority to both the U.S. Court of Federal and post-award bid protests. ADRA

Claims and the U.S. District Courts to hear pre-award provided the following:

Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract with any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall

1/ Pub. L. No. 104-320, §12, 110 Stat. 3870, 3874 (1996). 3

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have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded. 2z However, (d) Congress also provided for a sunset provision:

SUNSET. - The jurisdiction of the district courts of the United States over the actions described in section 1491(b)(1) of title 28, United States Code (as amended by subsection (a) &this section) shall terminate on January 1, 2001 unless extended by Congress. did not extend the district court jurisdiction, thus on January 1, 2001, U.S. bid

Congress

District Courts ceased to have jurisdiction protests.

to hear Federal Government

procurement

Other courts have held that the sunset provision in ADRA divested U.S. District Courts ofjurisdiction New Mexico, solicitation to hear bid protests. For example, when the City of Albuquerque, of the Interior ("DOI") regarding the

challenged

the U.S. Department

and evaluation of bids, as well as the ultimate site selected for office space,

the U.S. District Court for the District of New Mexico dismissed the case for lack of jurisdiction. There, the Court stated:

The City's action is precisely the type contemplated and controlled by the ADRA, exclusive jurisdiction for which lies in the Court of Federal Claims. Before 1996, this Court would likely have had jurisdiction to adjudicate this APA action by the City under the Scanwell doctrine .... wherein the D.C. Circuit determined that the district courts have jurisdiction to adjudicate bid protests under the APA. [Citations omitted.] That is no longer the case. Case law analyzing the ADRA's legislat,!ve histo_ makes it clear that Congress intended that the ADRA would subsume any causes of action in the realm of bid protests or procurement protests formerly arising under the APA and Scanwell. [Citations omitted.] After Nove!l and Emery Worldwide, the district courts do not retain any residual Scanwell jurisdiction. 3/

2/ Subsection (a)(3) of Section 12 of the Administrative No. 104-320, 110 Stat. 3874. ClO_oJ3lbuquerque 1196-1197 (July 31, 2002).
3/ ' "

Dispute Resolution

Act, Pub. L.

v. United States Department of the Interior, 217 F.Supp. 2d 1194, 4

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CONCLUSION For the reasons set forth above, the United States Department Service, respectfully jurisdiction. Respectfully submitted this Y day of June, 2004. PAUL K.CHARLTON United States Attorney of Agriculture, Forest

requests that this Court dismiss this case for lack of subject matter

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11 12 13 Original filed and copy of the foregoing ma_ed this _"c/_ day of June, 200-4, to: David V. Seyer LAW OFFICES OF DAVID V. SEYER 1761 East McNair Drive, Suite 102 Tempe, Arizona 85283-5002 Paul F. Dauer LAW OFFICES OF BEST BEST & KRIEGER, LLP 400 Capitol Mall Suite 1650 Sacramento, Ca ifornia 95814 Marion T. Cordova US Department of Agriculture 14th&'Independence, SW Room 3329D Washington, DC 20250

//__a MICHAEL A.JOHNS Assistant U.S. Attorney

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