Fisher-Cal Industries, Inc. v. United States of America
2012 U.S. Dist. LEXIS 36508
| D.D.C. | 2012Background
- Fisher-Cal bid on a Dover AFB multimedia services contract; Air Force issued RFP June 6, 2009 and awarded to Fisher-Cal September 15, 2009.
- Base year Oct 1, 2009–Sept 30, 2010 with four option years; insource decision announced July 30, 2010, not renewing for FY2011.
- Air Force paid for bridge services for six months post-expiration; by March 31, 2011, Air Force began in-house performance of the services.
- Fisher-Cal filed suit April 26, 2011 alleging the insourcing violated 10 U.S.C. §129a and related guidelines and procedures, and sought APA relief and fees under EAJA.
- Defendants moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and 12(b)(6), arguing exclusive jurisdiction of the Court of Federal Claims over procurement matters and mootness.
- The court granted the motion, holding insourcing decisions are “in connection with a procurement,” thus within exclusive jurisdiction of the Court of Federal Claims under the Tucker Act/ADRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether insourcing is a procurement matter under the Tucker Act | Insourcing is not procurement; not a ‘process of acquiring’ goods or services. | Insourcing is a matter in connection with procurement; exclusive jurisdiction lies with the Court of Federal Claims. | Insourcing falls within procurement; exclusive jurisdiction with Court of Federal Claims. |
| Whether any other jurisdictional basis exists for the APA or Tucker Act claims | APA provides jurisdiction; not limited to CFC. | Tucker Act/ADRA confer exclusive jurisdiction; APA cannot override. | No alternative jurisdiction; Tucker Act controls; ADA/APA cannot authorize district-court review. |
| Whether the case is moot or unreviewable in district court | Remedies still available; review appropriate in district court. | Insourcing has occurred; no relief available in district court. | Remainder mootness not reached; jurisdictional defect precludes dismissal on mootness grounds. |
Key Cases Cited
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008) (procurement process includes determining a need for property or services)
- Rothe Dev., Inc. v. U.S. Dep’t of Defense, 666 F.3d 336 (5th Cir. 2011) (insourcing challenge falls within §1491(b)(1))
- Vero Technical Support, Inc. v. U.S. Dep’t of Defense, 437 F. App’x 766 (11th Cir. 2011) (insourcing challenges governed by §1491(b))
- Santa Barbara Applied Research Inc. v. United States, 98 Fed. Cl. 536 (Fed. Cl. 2011) (insourcing decision made in connection with a procurement)
- Labat-Anderson Inc. v. United States, 65 Fed. Cl. 570 (Fed. Cl. 2005) (insourcing challenge aligned with procurement process)
- RCG v. United States, 597 F.3d 1238 (Fed. Cir. 2010) (procurement/“in connection with a procurement” scope)