Highview Engineering, Inc. v. United States Army Corps of Engineers
2012 U.S. Dist. LEXIS 45249
W.D. Ky.2012Background
- Mitigation banking under the Clean Water Act led WBK, in which Highview partnered, to a contract with the Corps that ended in a $70,000 settlement (Consent Judgment entered March 30, 2006).
- Hawkins formed a new wetlands proposal with Dr. Harris; Hawkins submitted it on Harris’s behalf in 2007.
- Approx. nine months later, a Corps Project Manager met with Harris and MeCafferty; Hawkins was excluded from the meeting.
- Harris later claimed McCafferty and Nunn indicated Hawkins’ involvement was disliked and that Harris should hire another consultant; Hawkins was allegedly debarred from Corps projects.
- Plaintiffs asserted de facto debarment and invoked the APA, seeking review as a final agency action; the court had previously allowed Count I to proceed and now granted summary judgment for the Corps on de facto debarment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether de facto debarment occurred | Hawkins showed agency conduct/viewpoint indicating rejection of Hawkins for future contracts | No de facto debarment; only one contract affected; no formal or final action | No de facto debarment; no final agency action under APA |
| Whether there was a final agency action reviewable under APA | If de facto debarment occurred, it is reviewable | There was no final agency action to review | No final action; APA review unavailable |
| Standard for summary judgment and whether facts are material | Disputes over statements and perceptions could defeat summary judgment | Undisputed facts show lack of de facto debarment as a matter of law | Summary judgment for Corps granted; Hawkins/Highview denied |
| Scope of evidence linking statements to debarment | Notes/emails show intent to blacklist Hawkins | Statements are ambiguous; no clear directive not to award future contracts | Insufficient to prove de facto debarment as a matter of law |
| Effect of single contract on de facto debarment claim | Precluding Hawkins from one contract signals de facto debarment | Preclusion of a single contract is insufficient for de facto debarment | Single-contract preclusion insufficient; no de facto debarment |
Key Cases Cited
- Transco Secur., Inc. v. Freeman, 639 F.2d 318 (6th Cir.1981) (deprivation of bidding rights requires procedural safeguards)
- Old Dominion Dairy Prods., Inc. v. Sec’y of Def., 631 F.2d 953 (D.C.Cir.1980) (due process limits on debarment and contractor removal)
- Air Brake Sys. v. Mineta, 357 F.3d 632 (6th Cir.2004) (final agency action needed for APA review; arbitrary-and-capricious standard)
- TLT Constr. Corp. v. United States, 50 Fed.Cl. 212 (Fed.Cl.2001) (de facto debarment by agency requires clear statements or conduct)
- Leslie & Elliott Co. v. Garrett, 732 F. Supp. 191 (D.D.C.1990) (de facto debarment can be found from agency conduct indicating future contract exclusion)