431 F. App'x 895
Fed. Cir.2011Background
- Totolo/King JV, SDVOSB, sought DVA construction contract via bid protest; initially restricted, then moved to unrestricted competition after CO found insufficient qualifying small businesses.
- Totolo/King filed suit in the Court of Federal Claims challenging the lack of limited-competition procurement.
- Court of Federal Claims denied relief and dismissed a later motion for relief from judgment as moot.
- During the appeal, Totolo died, depriving the JV of SDVOSB status and potentially standing to pursue merits relief.
- Government argued mootness since Totolo/King no longer qualifies as SDVOSB and cannot seek relief on the merits.
- Court held the action moot because Totolo/King lacked a live controversy, and the appeal was dismissed and remanded to dismiss the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Totolo/King’s death render the case moot? | Totolo/King remains capable of seeking fees and future benefits. | Death eliminates SDVOSB status and live controversy. | Yes; case moot due to loss of standing. |
| Can the case proceed for damages when no bid costs were incurred? | A count for damages may survive as a matter of rights. | Damages limited to bid preparation costs, which were not incurred. | No; no ongoing damages claim. |
| Is EAJA fee recovery viable after mootness and loss of prevailing party status? | Fees should be recoverable as the prevailing party. | Mootness and lack of prevailing party foreclose EAJA recovery. | No; EAJA fees unavailable. |
| Should the case be continued to benefit other SDVOSBs despite mootness? | Continuing serves important interests of others. | Abstract interests do not prevent mootness when no live controversy exists. | No; mootness forecloses continued action. |
Key Cases Cited
- DeFunis v. Odegaard, 416 U.S. 312 (1974) (federal courts lack power to decide questions that cannot affect litigants’ rights)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (requirement that a litigant have a direct stake in the outcome)
- Alvarez v. Smith, 130 S. Ct. 576 (2010) (privacy and remedial standing principles limit mootness analyses)