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Fisher-Cal Industries, Inc. v. United States

United States Court of Appeals, District of Columbia Circuit

April 8, 2014

FISHER-CAL INDUSTRIES, INC., APPELLANT
v.
UNITED STATES OF AMERICA, ET AL., APPELLEES

Argued September 18, 2013

Appeal from the United States District Court for the District of Columbia. (No. 1:11-cv-00791).

Lawrence J. Sklute argued the cause and filed the briefs for appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. W. Mark Nebeker, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.

OPINION

Page 900

Sentelle, Senior Circuit Judge.

Fisher-Cal Industries, Inc., filed a complaint in the district court, alleging that the United States Air Force violated the Administrative Procedure Act when the Air Force opted not to renew a contract for multimedia services with Fisher-Cal and decided instead to in-source the services. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), concluding that Fisher-Cal's claim falls within the exclusive Tucker Act jurisdiction of the United States Court of Federal Claims. We affirm.

Background

In 2009 the United States Air Force entered into a contract with appellant Fisher-Cal Industries to provide Dover Air Force base with multimedia services. The contract had a base one year term with four additional one-year term options. After the first nine months of Fisher-Cal performing under the contract, the Air Force notified Fisher-Cal that it had decided not to exercise its option to renew the contract after the base one-year term expired. The Air Force explained that it would in-source the multimedia services, having civilian government employees perform the work. After expiration of the contract, Fisher-Cal filed suit in the United States District Court for the District of Columbia. In its suit Fisher-Cal alleged that the Air Force's decision to in-source the multimedia services was arbitrary and capricious under the Administrative Procedure Act (" APA" ) because the Air Force had failed to perform a proper cost analysis pursuant to 10 U.S.C. § § 129a and 2463 (2010).

The district court dismissed the suit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). In dismissing the suit, the district court noted that the Tucker Act, 28 U.S.C. § 1491, as amended by the Administrative Disputes Resolution Act of 1996, provides that the United States Court of Federal Claims " shall have jurisdiction to render judgment on an action by an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." The district court went on to note that although the Tucker Act does not define " procurement," the relevant definition of the term was to be found in 41 U.S.C. § 111, which states that " procurement" includes " all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout."

The terms of 28 U.S.C. § 1491 and definition of procurement in 41 U.S.C. § 111, the district court reasoned, provide that in-sourcing decisions are matters connected to procurement of federal contracts. Citing Rothe Development, Inc. v. U.S. Department of Defense, 666 F.3d 336, 339 (5th Cir. 2011), Vero Technical Support, Inc. v. U.S. Department of Defense, 437 Fed.Appx. 766, 769-70 (11th Cir. 2011), and Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir. 2008), the district court concluded that the Air Force's decision to in-source necessarily involved " determining a need for property or services" and was therefore " in connection with a procurement" under the Tucker Act. The district court consequently determined that it had no subject matter jurisdiction over the matter because " the Court of Federal Claims has exclusive jurisdiction over challenges to the government's decision to insource services and thus over this dispute," Fisher-Cal Industries, Inc., v. United States, 839 F.Supp.2d 218, 224 (D.D.C. 2012). The district court dismissed the suit.

Page 901

Discussi ...


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