Fisher-Cal Industries, Inc. v. United States
747 F.3d 899
D.C. Cir.2014Background
- In 2009 the Air Force awarded Fisher-Cal a multimedia services contract at Dover AFB: one-year base term plus four one-year options.
- After nine months, before exercising the first option, the Air Force notified Fisher-Cal it would not renew and would "in-source" the services using civilian employees.
- Fisher-Cal sued in D.C. District Court under the Administrative Procedure Act (APA), alleging the in-sourcing decision was arbitrary and capricious because the Air Force failed to perform required cost analyses under 10 U.S.C. §§ 129a and 2463.
- The district court dismissed for lack of subject-matter jurisdiction, reasoning that the Tucker Act vests exclusive jurisdiction over procurement-related challenges in the Court of Federal Claims.
- The district court and both parties acknowledged the statutory definition of "procurement" in 41 U.S.C. § 111 and precedent treating in-sourcing decisions as within the procurement process.
- The D.C. Circuit affirmed, holding the in-sourcing challenge falls within Tucker Act jurisdiction and therefore belongs in the Court of Federal Claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a challenge to an agency's decision to in-source services is "in connection with a procurement or proposed procurement" and thus within exclusive Tucker Act jurisdiction | Fisher-Cal: § 111's phrase "process for determining a need for property or services" must be read to refer only to the process of acquiring services (i.e., after choosing to procure), so internal deliberations about in-sourcing are not procurement and are reviewable in district court under the APA | Government: The § 111 definition plainly includes the stage "process for determining a need for property or services," which encompasses decisions whether to in-source or contract; such claims fall under Tucker Act jurisdiction at the Court of Federal Claims | The court rejected Fisher-Cal's narrow reading of § 111 and affirmed that in-sourcing decisions are within the Tucker Act procurement definition; exclusive jurisdiction lies with the Court of Federal Claims |
Key Cases Cited
- Rothe Dev., Inc. v. United States Dep't of Def., 666 F.3d 336 (5th Cir. 2011) (held challenge to in-sourcing decision falls within Tucker Act because procurement definition includes determining need for services)
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008) (interpreted "in connection with a procurement" to include any stage of the acquisition process, including determining a need)
- Vero Technical Support, Inc. v. United States Dep't of Def., [citation="437 F. App'x 766"] (11th Cir. 2011) (treats decision to in-source as within procurement process and Tucker Act jurisdiction)