Lead Opinion
This interlocutory appeal concerns a contract dispute about the provision of food services at the Fort Riley Army base in Kansas. The root of the dispute is the intersection of two federal statutes that both address the procurement of food services, at federal facilities: (1) the Randolph-Sheppard Vending Facility Act of 1936 (RSA), and (2) the Javits Wagner O’Day Act (JWOD). The parties. disagree as to which of these statutes-governs the.award of the Fort Riley food services contract. And due to events that have occurred since this action was filed, the parties also dispute whether this appeal has been rendered moot.
We first conclude that the issue raised by this appeal falls within an exception to the mootness doctrine for matters capable of repetition yet evading review. Next, we hold that the district court properly exercised subject-matter jurisdiction over-this matter. But given the current posture of this case, we decline to address which statute governs the contract at issue or whether the district court properly granted in-junctive relief.
I. BACKGROUND
The Department of the Army (Amy) contracts with outside vendors for food preparation and related supporting services for its cafeteria dining facilities at Fort Riley. Since 2006, the State of Kansas, through the Kansas Department for Children and Families (Kansas), has successfully bid. under the RSA on those food preparation and related services contracts at Fort Riley. • Kansas’s most recent contract
As that date approached, the Army determined that its next dining contract at Fort Riley would be for supporting services only. The Army therefore decided that it need not solicit bids under the RSA and it approached another vendor directly, as permitted by the JWOD. Kansas took exception to the Army’s decision because it eliminated- Kansas’s ability to bid on the contract. So Kansas initiated arbitration proceedings under the RSA’s dispute resolution provisions. And upon learning that the .Army intended to contract with the other vendor despite the commencement of arbitration proceedings, Kansas sued in federal court, seeking to preliminarily enjoin the Army from executing the JWOD contract pending arbitration.
The district court granted Kansas’s request for a preliminary injunction pending arbitration. Two entities with an interest in the JWOD contract, SoureeAmerica and Lakeview Center, Inc. (collectively, Inter-venors), then intervened, and argued, among other things, that the district court lacked subject-matter jurisdiction to issue the preliminary injunction. The district court rejected Intervenors’ arguments; In-tervenors .filed a timely appeal. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we now affirm.
To place our analysis in context, we begin with an overview of the RSA and the JWOD, as well as relevant legislative developments. Next, we provide the factual and procedural history of the dispute between Kansas and the .Army, Finally, we address the legal issues raised by this appeal. We first conclude .that the case is not moot, despite the arbitration decision rendered during the pendency of this appeal. Second, we conclude that the district court properly exercised subject-matter jurisdiction over this matter.
A. Statutory and Regulatory . Background
1. The RSA
Congress enacted the RSA to “enlarg[e] the economic opportunities of the blind” by giving them priority in the bidding of contracts “to operate vending facilities on any Federal property.” 20 U.S.C. § 107. Vending facilities under the RSA include cafeterias on military bases like Fort Riley. See id. § 107e(7); Kentucky v U.S. ex rel. Hagel,
Under the RSA, the Secretary designates a State Licensing Agency (SLA) in each state to issue licenses to qualified blind persons to operate vending facilities on federal property. 20 U.S.C. § 107a(a)(5). Plaintiff-Appellee Kansas Department for Children and Families is . the designated SLA in Kansas. When a federal agency procures vending-facility services, it does not contract directly with a blind vendor. The agency instead negotiates a contract directly with the SLA or solicits competitive bids, for the contract. 34 C.F.R. § 395.33(b), (d); see Kansas v. United States,
The RSA provides for arbitration of all disputes between an SLA and a federal agency that has solicited vending-facility services. 20 U.S.C. § 107d-l(b). If an SLA determines that a federal agency “is failing to comply” with the RSA or any regulation issued thereunder, then the SLA “may file a complaint with the Secretary” of the DOE. Id. In the event the SLA files a complaint, the Secretary “shall convene a panel to arbitrate the dispute ... and the decision of such panel shall be final and binding on the parties.” Id. If the arbitration panel “finds that the acts or practices” of the federal agency are in violation of the RSA or any regulation issued thereunder, then the head of the federal agency “shall cause such acts or practices to be terminated promptly and shall take such other action as may be necessary to carry out the decision of the panel.” Id. § 107d-2(b)(2). The arbitration panel’s decision is subject to judicial review as a final agency action under the Administrative Procedure Act (APA). Id. § 107d-2(a); see 5 U.S.C. § 706(2)(A) (stating a court may set aside an agency’s decision only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
2. TheJWOD
The JWOD likewise applies to services rendered on federal properties. The JWOD’s purpose is “to increase employment and training opportunities for persons who are blind or have other severe disabilities through the purchase of commodities and services from qualified nonprofit agencies employing persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-1.1(a); see also 41 U.S.C. § 8502 (titled “Committee for Purchase From People Who Are Blind or Severely Disabled”). To implement this policy, Congress created a committee now known as the AbilityOne Commission (Commission), see 41 U.S.C. § 8502; Committee for Purchase From People Wdio Are Blind or Severely Disabled, 71 Fed. Reg. 68492-01 (Nov. 27, 2006) (to be codified at 41 C.F.R. pts. 51-1, 51-2, 51-3, 51-4, and 51-6), and charged it with promulgating implementing regulations, see 41 U.S.C. § 8503(d).
The Commission oversees the so-called AbilityOne Program (Program), under which the Commission must “maintain and publish in the Federal Register a procurement list.” Id. § 8503(a). The procurement list consists of products produced and services provided by qualified nonprofit agencies that the Commission deems suitable for the federal government’s procurement. Id. Federal government entities are required to procure the products and services on the procurement list pursuant to the Commission’s regulations and at the price set by the Commission. Id. § 8504(a).
The central nonprofit agencies are required to identify possible services to include on the procurement list. 41 C.F.R. § 51-3.2. If the Commission determines that the service is suitable to add to the procurement list, it publishes a notice in the Federal Register of its intent to do so. See id. § 51-2.2(b). Interested persons then have thirty days to comment on the proposed addition, after which the Commission determines whether the service is suitable to add to the procurement list. See id. §§ 51-2.3, -2.4. As stated, once a service is added to the procurement list, federal entities must procure that service from a designated qualified nonprofit agency. 41 U.S.C. § 8504(a); see also 41 C.F.R. § 51-1.2(a) (“The JWOD Act mandates that commodities or services on the Procurement List required by Government entities be procured ... from a nonprofit agency employing persons who are blind or have other severe disabilities!.]”).
3. Legislative Developments
In 2003, this court held that the RSA applies over the JWOD to dining facility contracts on military bases because the RSA specifically “prescribes a priority for blind vendors in the operation of cafeterias on federal properly, whereas the JWOD is a more general procurement statute.” NISH v. Rumsfeld,
But in 2006, Congress passed § 848 of the National Defense Authorization Act for Fiscal Year 2006 (2006 NDAA). See Pub. L. No. 109-163, § 848, 119 Stat. 3136 (2006). In § 848, Congress directed the DOE, the Commission, and the Department of Defense (DOD) to issue a joint statement of policy concerning the two Acts’ application to the operation and management of military dining facilities. Id.
In August 2006, the three agencies submitted to Congress a joint report (2006 Joint Report) after providing for notice and comment in the Federal Register. The agencies made several recommendations to Congress, including:
(1) that Congress should enact a “no poaching” provision which would require existing contracts to remain governed by the procurement statute already in place for those contracts; (2) that the RSA should apply to contracts when the contractor will exercise management responsibility and day-to-day decision-making for the overall functioning of the facility; and (3) that the JWOD should apply when the [DOD] needs dining support services but [DOD] personnel are exercising overall functional and management responsibilities.
Kansas,
Also in 2006, Congress enacted the “no poaching” provision in § 856 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (2007 NDAA). Pub. L. No. 109-364, § 856, 120 Stat. 2083 (2006). Congress explained- that the contracts covered under the “no poaching” provision include.“a food service contract ... for -full food services, mess attendant services, or .services supporting the operation of all or any part of a military dining facility ... that was awarded'under’either the [RSA] or the [JWOD]” Id. Congress has not enacted any of the other recommendations from the agencies’ 2006 Joint Report,
Next, Congress passed the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (2015 NDAA). Pub. L. No. 113-291, 128 Stat. 3292 (2014). In an accompanying Joint Explanatory Statement,- Congress noted that there is still a need for regulatory guidance on the competing applications of the RSA and the JWOD. It also stated: “Pursuant to the [2006 Joint Report], the [RSA] applies to contracts for the operation of a military dining facility, or full food services, and the [JWOD] applies to contracts and subcontracts for dining support services, or dining facility attendant services, for the operation of a military dining facility.” Congress then dir rected the Secretary of Defense to implement the 2006 Joint Report by promulgating regulations explaining how the two Acts should apply to- new contracts. Congress, gave the Secretary of Defense 180 days after the 2015 NDAA’s enactment to do ,so. The Secretary did not meet this deadline. But on June 7, 2016, the Secrer tary of Defense issued a proposed rule that would implement the 2006 Joint Report and the 2015 Joint Explanatory Statement. See Food Services for Dining Facilities on Military Installations, 81 Fed. Reg. 36,506 (June 7, 2016). The .notice and comment period closed in August 2016, and, according to Intervenors, a final rule is forthcoming but has not yet been issued.
B. The Dispute Between the Army and Kansas
Fort Riley is an active military base in Kansas. In order to support its logistical functions while soldiers were deployed, the Army hired contractors to provide Full Food Service (FFS) and Dining Facility Attendant (DFA) services at the base. “FFS contracts are more expansive and typically involve food preparation.” Kansas,
The Army solicited competitive bids under the RSA for its last two dining facility service contracts at Fort Riley. Id. at 1149. Kansas successfully bid on both contracts, suggesting that Kansas’s bids “were sufficiently competitive.” Id. Kansas received its first FFS contract at Fort Riley in June 2006 and its second FFS contract in September 2011. The second FFS contract was set to expire on August 31, 2015, but it was extended during this litigation until February 29, 2016.
The Army determined its next contract at. the base will only be. for DFA services because soldiers returning to Fort Riley from deployment could resume operating the military dining facilities. The contracting authorities at Fort Riley determined that a contract for only DFA services was not- subject to the RSA, and that such services could instead be procured under the JWOD, Id. at 1150. So Fort Riley’s
After learning of these developments, Kansas asked the Army to comply with .the RSA. Id, at 1151. The Army refused. See id. And on May 7, 2015,.Kansas filed a complaint with the Secretary of the DOE, requesting the Secretary “to commence an arbitration proceeding to, determine whether the. Army had violated the RSA by not procuring the [DFA] services under the RSA.” Id.
Undeterred, on July 17, 2015, the Commission published notice in the Federal Register for comment on the proposed addition of DFA services at Fort Riley to the procurement- list. See Procurement List; Proposed Additions and Deletions, 80 Fed.' Reg. 42481-01 (July 17, 2015). After receiving no public comments, on January 22, 2016, the Commission approved the addition of DFA services at Fort Riley to the procurement list. Kansas,
C. Procedural History
On July 22, 2015, after learning the Army intended to proceed under the JWOD, Kansas filed its Complaint in the United States District Court for the District of Kansas. Kansas alleged.the United States (i.e., the Army) violated the RSA by asking the Commission to add the DFA services to the procurement list, thereby eliminating Kansas’s right to, compete for services under the RSA’s priority bidding procedures.
■ Kansas sought to preliminarily enjoin the Army from procuring dining facility services at Fort Riley under the JWOD pending resolution of the RSA-mandated arbitration .proceeding before the DOE.
conducting any procurement, including making any award of contract in connection with cafeteria services at Fort Riley, except as permitted under the RSA and its regulations, until, such time as the arbitration proceeding initiated by Kansas under the RSA is concluded, or further order modifying this preliminary injunction.
Id.
The district court then granted. Interve-nors’ motion to intervene. Kansas v. United States,
While this case was pending on appeal, an arbitration panel convened by the Secretary of the DOE held a hearing to determine whether the RSA applies to the DFA services contract at issue. On May 9, 2017, the arbitration panel concluded that the RSA applies to the Fort Riley procurement and that the Army violated the RSA by failing to apply the RSA priority procedures in the solicitation of DFA services at Fort Riley. The arbitration panel also determined the Army violated the “no poaching” provision of the 2007 NDAA. In view of the arbitration panel’s decision, we asked the parties to submit supplemental briefing on whether this appeal is moot.
II. ANALYSIS
We first consider whether the arbitration panel’s ruling rendered this appeal moot. Concluding that this case is capable of repetition yet evading review and thus justiciable, we next address Intervenors’ arguments that the Court of Federal Claims has exclusive jurisdiction over this case and that the district, court did not have jurisdiction to grant Kansas’s request for a preliminary injunction.
A. Mootness
“Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies,’ and an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kingdomware Techs., Inc. v. United States, — U.S. —,
Kansas argues that this appeal is moot because the arbitration panel’s decision resolved all substantive issues in dispute and we are no longer capable of granting any effectual relief. Indeed, Kansas maintains there is no longer a live case or controversy because the effective time
The Supreme Court’s decision in King-domware is instructive. There, the Court considered the impact of federal statutes designed to encourage small businesses.
Kingdomware is a service-disabled veteran-owned small business that provides emergency notification services. Id. In January 2012, the DVA decided to procure such services for four VA medical centers. Id. But it did so through the FSS, bypassing the Rule of Two and awarding the contract to a non-veteran-owned company. Id. at 1974-75. Kingdomware filed a bid protest with the Government Accountability Office (GAO), and the GAO issued a non-binding decision agreeing with King-domware that the DVA’s failure to apply the Rule of Two was unlawful. Id. at 1975. The DVA disagreed with the GAO’s decision. Id. Kingdomware therefore filed suit in the Court of Federal Claims for declaratory and injunctive relief, arguing that § 8127(d) requires the DVA to apply the Rule of Two to all contracts awarded. Id. The Court of Federal Claims sided with the DVA, and the Federal Circuit affirmed. Id.
The Supreme Court granted certiorari to determine whether § 8127(d) requires the DVA to apply the Rule of Two in all contracting. Id. But before the Court addressed the merits, it considered whether the matter was moot. Id. Although the Court acknowledged that no court could grant Kingdomware the relief it sought because performance of the procurement was complete, the Court held that the case fell within the exception for disputes capable
The Court first held that the procurement was fully performed in less than two years after it was awarded and was therefore too short to permit full litigation of the issue. Id. at 1976. It' then concluded that “it is reasonable to expect that the [DVA] will refuse to apply the Rule of Two in a future .procurement for the kind of services provided by Kingdomware.” Id. After all, the preamble to the DVA's implementing regulations permit the DVA to do just that, stating that the Rule of Two does not apply to FSS task or delivery orders, See id. at 1974. And the DVA procured the emergency notification services at issue in accordance with that interpretation. See id. But,
[i]f Kingdomware’s interpretation of § 8127(d) is correct, then the [DVA] must use restricted competition rather than procure on,the open market. And Kingdomware, which has been awarded many previous contracts, has shown a reasonable likelihood that it would be awarded a future contract if its interpretation of § 8127(d) prevails. See Decl. of Corydon Ford Heard III ¶¶ 11-15 (explaining that the company continues to bid on similar contracts).
Id. at 1976. As a result, the Court determined that it had jurisdiction “because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete.” Id.
Similarly, we conclude that this appeal falls within the exception for disputes that are capable of repetition yet evading review. First, the Army’s procurement process under the JWOD was too short in duration to be fully litigated prior to its completion. Recall that on March 16, 2015, the Commission notified the DOE - that it may add DFA services.at Fort Riley to the procurement, list pursuant to the JWOD. Then ■ on July 17, 2015, the" Commission published notice in the Federal Register for comment on the proposed addition of DFA services at Fort Riley to the procurement list. And on January 22, 2016, the Commission approved the addition of DFA services at Fort Riley to the procurement list and formally designated Lakeview as the mandatory- source of those- services effective February 21, 2016, eight days before Kansas’s prior contract was set to expire. In all, the procurement process lasted less than one year, demonstrating that the controversy expires too quickly for Kansas to fully litigate the matter. See Kentucky v. U.S. ex rel, Hagel,
Second, there is a reasonable expectation that the Army will refuse to apply the RSA to future procurements of dining services at Fort Riley. Just as the preamble to the DVA’s implementing regulations supported the DVA’s view that the Rule .of Two does not apply to FSS task or delivery orders, the 2006 Joint Report, the 2015 NDAA’s Joint Explanatory Statement, and the DOD’s proposed regulations all support
Accordingly, this appeal is not moot. The same issues in this case are likely to recur in future controversies between the same parties in circumstances where the procurement period is too short in duration to be fully litigated before its completion. See Hagel,
.The dissent concludes that this appeal is moot, and in doing so faults Intervenors for failing to make arguments on appeal like those made in Hagel. But our conclusion does not rest solely on Hagel-, it also rests on Kingdomware. Even so, Interve-nors did in fact argue that Hagel (and Kingdomware) apply here. On page one of Intervenors’ Supplemental Brief, Interve-nors cite Hagel and Kingdomware. In both cases the court held that the dispute was capable of repetition yet evading, review. See Kingdomware,
Concluding that this appeal is not moot, we now turn to the question ,of whether the district court correctly ruled that the Court of Federal Claims does not have exclusive jurisdiction over this case.
B. The United States Court of Federal Claims Jurisdiction
Intervenors argue that the district court did not have subject-matter jurisdiction to preliminarily enjoin the Army’s ongoing procurement of DFA services under the JWOD because the Tucker Act vests the Court of. Federal. Claims with exclusive jurisdiction over this “paradigmatic bid protest.” In rejecting this argument below, the district court acknowledged that the Tucker Act confers • exclusive jurisdiction upon the Court of Federal Claims over bid protests against the federal government. See Kansas v. United States,
1. Standard of Review
We review de novo the district court’s ruling on subject-matter jurisdiction. Niemi v. Lasshofer,
2. Discussion
“[FJederal courts are courts of limited jurisdiction,” Owen Equip. & Erection Co. v. Kroger,
As an initial matter, the United States, which is a defendant here, is immune from suit unless it expressly and unequivocally waives its sovereign immunity. United States v. Mitchell,
Under the Tucker Act, the Court of Federal Claims has jurisdiction
to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1). An “interested party” is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” City of Albuquerque,
Intervenors contend that Kansas’s suit was a bid protest directly challenging an ongoing JWOD procurement that falls squarely within the scope of the Tucker Act and the Court of Federal Claims’ exclusive jurisdiction. And according to In-tervenors, Kansas concedes that it is an “interested party,” that the Fort Riley contract was a “procurement,” and that it seeks a preliminary injunction to prevent this procurement. We reject Intervenors’ argument and instead find the Federal Circuit’s analysis in Kentucky, Education instructive.
There, the Army issued a solicitation for bids on a DFA contract at Fort Campbell, Kentucky. Kentucky v. United States,
The SLA filed a bid protest action in the Court of Federal Claims, asserting that the Army should have included the SLA’s
The Federal Circuit affirmed, but on narrower grounds. Kentucky, Educ.,
The court found that the RSA’s legislative history supported that interpretation of the statute. See id. at 1225. It explained:
Congress enacted the arbitration provisions t,o fill a gap in the existing statutory scheme, under which vendors- and state licensing agencies could bring claims based on a breach of contract or a violation of other federal procurement provisions, but could not bring a claim arising under the RSA. Congress specifically sought to fill that gap in a targeted fashion, covering only claims alleging a failure to comply with the RSA.
Id. at 1226 (citation- omitted). Therefore, “common allegations such as a breach of contract or a violation of government procurement provisions” may be brought in the -Court of Federal Claims without first submitting the claim to arbitration, provided that the plaintiff does not allege in its complaint a violation of the RSA. Id.; see also id. (“For claims relating to procurement disputes not based on the RSA and its regulations, there would be no reason to bypass conventional bid protest and fedr eral contract remedies -in favor, of arbitration by panels, convened by the Secretary of Education.”).
Even though the SLA in Kentucky, Education argued that it brought its claim under the Competition in Contracting Act and the Court of Federal Claims thus had Tucker Act jurisdiction, the Federal Circuit concluded that the SLA’s claims arose under the RSA. Id. at 1227. The SLA alleged that the Army “thwarted the regulations promulgatéd under the RSA by constructing the competitive range and evaluating [the SLA’s] past-performance in a way that avoided giving the [SLA] priority
The Federal Circuit next' held that arbitration under the RSA is' a “mandatory” administrative prerequisite to seeking judicial relief. Id. at 1228-29; see Randolph-Sheppard Vendors of Am. v. Weinberger,
Thus, under Kentucky, Education, the Court of Federal Claims lacks Tucker Act jurisdiction whenever a plaintiff alleges that a federal agency violated the RSA or its attendant regulations and the plaintiff has yet to arbitrate those claims. This is so even if the plaintiffs allegations technically fall within the scope of 28 U.S.C. § 1491(b)(1). See Colo. Dep’t of Human Servs. v. United States,
Here, Kansas maintains it alleged an RSA violation, triggering its obligation to arbitrate and stripping the Court of Federal Claims of Tucker 'Act jurisdiction until it has- done so. Intervenors, however, argue that Kansas’s claim is a classic bid protest falling within the scope of the Tucker Act. In resolving this dispute, we examine Kansas’s “prime objective” and “essential purpose” in bringing suit, see Burkins v. United States,
A review' of Kansas’s operative Complaint demonstrates that the substance of its allegations is that the Army violated the RSA by (1) concluding that the DFA services contract at Fort Riley is not subject to the .RSA, (2). asking the Commission to add the DFA services to the procurement .list, and (3) ..eliminating Kansas’s right to compete for services under the RSA’s priority bidding procedures. Kansas .alleges that’the Army’s conclusion that the RSA does not apply to the DFA services contract “not only ignore[d] the priority under the [RSA], but also precludefd] Kansas
To be sure, the net effect of the injunction Kansas requested and received was to halt the Army’s procurement of DFA services under the JWOD. But the disruption to the Army’s procurement under the JWOD was simply incidental to Kansas’s primary objective of enforcing the RSA. Indeed, Kansas’s allegations do not turn on whether the Army violated the JWOD; they turn on whether the Army violated the RSA when it concluded that DFA services are not subject to the RSA and eliminated Kansas’s ability to receive priority thereunder. Kansas’s essential purpose in seeking an injunction was to receive priority under the RSA and to be awarded the DFA services contract at Fort Riley. Kansas thus alleged an RSA violation, triggering its obligation to arbitrate. Because there is no dispute Kansas had yet to arbitrate its claim at the time the district court issued the injunction, the Court of Federal Claims did not have jurisdiction over this case.
Intervenors insist that this case should have been heard in the Court of Federal Claims because the RSA does not apply to the procurement of DFA services at Fort Riley. The parties contest whether the DFA services contract is one for the “operation of [a] cafeteria[ ] on Federal property,” 20 U.S.C. § 107d-3(e), or one at least “pertaining to the operation” of such a cafeteria, 34 C.F.R. § 395.33(c). Interve-nors urged the district court, and urge us again here, to resolve this dispute. But Congress declared that an RSA arbitration panel should decide in the first instance whether the DFA services contract is governed by the RSA. See Weinberger,
Intervenors next argue that even if Kansas raised issues under the RSA, the district court did not have the authority to intrude upon the Court of Federal Claims’
Finally, Intervenors cite two nonbinding cases they contend support the proposition that the Court of Federal Claims has jurisdiction over this case even if it is in fact an RSA case. First, in Washington State Department of Services for the Blind v. United States,
Second, Intervenors maintain that the Court of Federal Claims in North Carolina Business Enterprises Program v. United States,
In sum, the Court of Federal Claims lacks Tucker Act jurisdiction when a plaintiff alleges that a federal agency violated the RSA or its attendant regulations and the plaintiff has yet to arbitrate those claims. Here, Kansas alleges that the Army violated, the RSA, and it had yet to arbitrate at the time the district court issued the preliminary injunction. Thus, any jurisdiction that the Court of Federal Claims may have had over any remaining procurement issues was preempted. The
C. The District Court’s Jurisdiction
Intervenors next contend that even' if the Court of Federal Claims did not have exclusive jurisdiction over this case, the district' court did not have jurisdiction to issue a preliminary injunction pending RSA arbitration because Kansas had yet to exhaust its mandatory administrative remedy of arbitration.. The district court rejected this argument, ruling that the RSA’s arbitration requirement is non-jurisdictional. See Kansas v. United States,
1. Standard of Review
We review the district court’s ruling on subject-matter jurisdiction de novo. Niemi v. Lasshofer,
2. Discussion
“Jurisdiction ... is a word of many, too many, meanings.” Steel Co. v. Citizens for Better Env’t,
In general, the exhaustion doctrine “provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Woodford v. Ngo,
Non-jurisdictional exhaustion “is a judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing théir case to court,” Avocados Plus,
Sometimes, non-jurisdictional exhaustion will not meet these ends. Avocados Plus,
Despite the differences between jurisdictional and non-jurisdictional exhaustion requirements, courts have historically referred to exhaustion as being jurisdictional. Id. But recent Supreme Court decisions “cast[ ] doubt on that characterization.” Id. (citing Jones v. Bock,
To provide clarity on this and similar issues, the Supreme Court “adopted a readily administrable bright line [rule] for determining whether to classify a statutory limitation as jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr.,
In Salfi, for example, the Court held that the Social Security Act’s exhaustion provision is jurisdictional. 422 U.S. at -756-60, 95. S.Ct. 2457. The, provision provides:
The findings and decision of the Commissioner of -Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, orgovernmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h); see Salfi,
In Arbaugh, however, the Court held that Title VU’s fifteen-or-more-employees requirement is not jurisdictional: the requirement “appears in a separate provision [from Title VII’s jurisdictional provision] that does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.”
And in Kentucky v. United States ex rel. Hagel,
The Sixth Circuit reversed, concluding that the SLA’s failure to seek and complete arbitration did not deprive the district court of jurisdiction. Id. at 592. The court found that exhaustion under the RSA is not jurisdictional and that the SLA demonstrated it met an exception to that non-jurisdictional requirement. Id. at 597. On the first point, the court relied on Arbaugh’s clear-statement rule and held that RSA § 107d-l(b) is “not phrased in jurisdictional terms,” nor does it “reference the jurisdiction of federal courts.” Hagel,
An independent examination of § 107d-l(b) confirms the holding in Hagel. The full text of § 107d-l(b), titled “Grievances of Blind Licensees,” provides:
Whenever any State licensing agency determines that any department, agency, or instrumentality of the United States that has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of this chapter or any regulations issued thereunder (including a limitation on the placement or operation of a vending facility as described in section 107(b) of the title and the Secretary’s determination thereon) such licensing agency may file a complaint with the Secretary who shall convene a panel to arbitrate this dispute pursuant to section 107d-2 of this title, and the decisionof such panel shall be final and binding on the parties except as otherwise provided in this chapter.
20 U.S.C. § 107d-l(b).
Section 107d-l(b) does not contain the sweeping and direct language necessary to demonstrate a clear statement from Congress that failure to arbitrate strips federal courts of jurisdiction. The provision does not “reference the jurisdiction of federal courts.” Hagel,
To be sure, the Federal Circuit examined the legislative history and purpose of the RSA’s arbitration provisions before concluding that the lower court “lacked jurisdiction” because the SLA “did not exhaust [the] mandatory administrative remedy” of arbitration. Kentucky, Educ. Cabinet, Dep’t for the Blind v. United States,
What is more, Kentucky, Education predates Arbaugh, in which the Supreme Court provided the clear-statement rule and instructed courts to give “no prece-dential effect” to “drive-by jurisdictional rulings” that failed to adequately evaluate whether a statutory limitation deprived courts of subject-matter jurisdiction.
Intervenors cite two cases they contend support the proposition that we have found comparable statutory language to constitute a jurisdictional bar to suit. First, In-tervenors cite Porta v. U.S. Office of Personnel Management,
Concluding that the RSA’s arbitration requirement is not jurisdictional does not end the analysis. “[A] failure to exhaust administrative remedies is [often] fatal to a suit in federal court.” Hagel,
As stated, exhaustion may be excused at the district court’s discretion “if the litigant’s interests in immediate judicial review outweigh the government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to.further.” McCarthy,
Courts apply the same irreparable harm, standard in the failure-to-exhaust context as in the preliminary injunction context. See, e.g., Randolph-Sheppard Vendors of Am. v. Weinberger,
The Sixth Circuit’s Hagel decision is again instructive. Recall that the SLA in that case sought a preliminary injunction to enjoin the Army from awarding a DFA services contract pending arbitration under the RSA.
Similarly, requiring Kansas to complete arbitration before coming to federal court for a preliminary injunction would have resulted in irreparable harm. Under Kansas’s interpretation of the RSA and its accompanying regulations, the Army must negotiate with Kansas for the DFA services contract at Fort Riley, or at least give Kansas priority in the bidding process. See 34 C.F.R. 395.33(a)-(d). But the Army has determined the. RSA does not apply to the DFA services contract. In the absence of an injunction pending arbitration, the Army would have been able to proceed under the JWQD and award the DFA services contract to Lakeview. This means Kansas would.not have been able to compete for . the contract, even though Kansas’s prior bids were competitive and the Army awarded the contracts to Kansas. As a result, there was a significant risk that Kansas would have suffered great financial harm by the time it eventually prevailed in arbitration. Although economic harm is generally not irreparable, sovereign immunity bars an arbitration panel or a federal court from awarding Kansas monetary damages even though the arbitration panel found that the Army violated the RSA. See Hagel,
Intervenors argue that “Kansas [could not] secure a premature adjudication of its RSA claim in district court, when the [DOE] ha[d] not yet had the chance to weigh in on Kansas’s claims.” Certainly, one of exhaustion’s primary purposes is to prevent “premature interruption of the administrative process.” McKart,
We conclude that the RSA’s arbitration provisions are not jurisdictional, and that Kansas satisfies the irreparable harm exception to jurisprudential exhaustion. The district court had jurisdiction to issue the preliminary injunction under § 1331 and the RSA, and under the APA’s limited waiver of sovereign immunity.
III. CONCLUSION
The jurisdictional issue raised by this appeal falls within an exception to the mootness doctrine for matters capable of repetition but evading review. Considering the issue on the merits, we AFFIRM the district court’s ruling that it had jurisdiction to issue the preliminary injunction prohibiting the Army from proceeding with the JWOD contract pending arbitration. But because the arbitration panel has since issued its decision thereby dissolving that injunction, we decline to address whether the district court correctly granted the injunction.
Notes
. Kansas initially requested both preliminary and permanent injunctive relief. But Kansas later sought, and was granted, leave to tile an Amended Complaint in which it requested only preliminary injunctive relief. Kansas v. United States,
. In March 2016, the district court also denied the Army’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can'be granted. Kansas,
. Intervenors also argue that the district court abused its discretion when it granted Kansas’s request for a preliminary injunction. In issuing the injunction, the district court concluded that Kansas was substantially likely to succeed in arbitration. See Kansas,
. When originally enacted in 1996, the Administrative Dispute Resolution Act (ADRA) amended the Tucker Act and gave federal district courts and the Court of Federal Claims subject-matter jurisdiction over government contract protest actions. See City of Albuquerque v. U.S. Dep't of Interior,
. The primary jurisdiction doctrine
applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
Wash. State Dep’t of Servs. for the Blind v. United States,
. At least one court has held that an SLA will not suffer irreparable harm in similar circumstances because the Secretary of the DOE has "broad remedial powers” to remedy any harm an SLA may suffer absent 'an injunction. See, e.g., Colorado v. United States,
If the [arbitration] panel appointed pursuant to [an SLA’s complaint with the Secretary] finds that the acts or practices of any such department, agency, or instrumentality are in violation of this'chapter, or any regulation issued thereunder, the head of any such department, agency, or instrumentality shall cause such acts or practices to be terminated promptly and shall take such other action as may be necessary to carry out the decision of the panel.
20 U.S.C. § 107d-2(b) (emphasis added); see also 34 C.F.R. § 395.37(d).
Dissenting Opinion
dissenting.
Before considering the merits, we must decide whether this appeal has become moot. Early in the litigation, the parties knew that the merits would be decided in arbitration, but the plaintiff (the Kansas Department for Children and Families) wanted interim relief prior to the arbitration decision. So, the plaintiff sued in federal court for a preliminary injunction pending the arbitration decision. The district court granted the preliminary injunction, and two defendants (SourceAmeriea and Lakeview)
SourceAmeriea and Lakeview answer “no,” arguing that the appeal is not moot because the dispute is capable of repetition yet evading review. But the dispute would be capable of repetition only if SourceAm-erica or Lakeview had shown a reasonable expectation that the plaintiff would again face the alleged illegality. SourceAmeriea and Lakeview have failed to make this showing. Thus, I conclude that the appeal is moot.
I. The Dispute Between the Army and a Kansas Agency
The underlying dispute involves the procurement of dining services for a military base in Kansas (Fort Riley). In 2011, the Army entered into a contract for dining services with the plaintiff, a Kansas agency. This contract expired in February 2016.
The legal question arose because two statutes potentially applied: the Randolph-Sheppard Act (20 U.S.C. §§ 107-107f) and the Javits-Wagner-O’Day Act (41 U.S.C. §§ 8501-8506). If the Army concluded that the Randolph-Sheppard Act controlled, the Army would presumably enter into another contract with the Kansas agency. Instead the Army concluded that the Javits-Wagner-O’Day Act controlled. Based on this conclusion, the Army decided to hire Lakeview to provide dining services.
But before the Army entered into a contract with Lakeview, the Kansas agency stepped in. The Kansas agency believed that the Randolph-Sheppard Act controlled. So, the Kansas agency demanded arbitration, as permitted under the Randolph-Sheppard Act. In connection with this arbitration, the Kansas agency obtained a preliminary injunction that effectively prohibited the Army from awarding the contract to Lakeview prior to the arbitration panel’s decision. Lakeview and SourceAmerica
During the pendency of the appeal, the arbitration panel decided in favor of the Kansas agency. With this arbitration decision, the preliminary injunction expired. We must now decide whether the appeal has become moot.
II. Mootness Doctrine and the Exception for Disputes Capable of Repetition Yet Evading Review
When an appeal becomes moot, it must be dismissed. See Campbell-Ewald Co. v. Gomez, 577 U.S. -,
But when a defendant appeals a preliminary injunction, who is the “complaining party”? Is it the plaintiff or is it the defendant being enjoined? We have answered that the “complaining party” is the plaintiff, not the defendant being enjoined. Fischbach v. N.M. Activities Ass’n,
III. Allocation of the Burdens
The Kansas agency bears the burden to show that the appeal is moot. See Paige v. Jubber,
IY. Application of the. Burdens
The Kansas agency has shown that the appeal is moot because the preliminary injunction expired once the arbitration panel rendered a decision. Once the decision was rendered, the Kansas agency lost any stake in the outcome of the appeal.
SourceAmerica and Lakeview question whether the Kansas agency retained -a stake in the outcome, arguing that the agency took inconsistent positions in district court and on appeal. According to SourceAmerica and Lakeview, the Kansas agency asked the district court to leave the preliminary injunction “ ‘in place while this case [was] pending on appeal.’” Defs,’ Supp. Resp, Br. at 3 (emphasis omitted) (quoting State of Kansas’s Response Memorandum at 1, Kansas v. United States, No. 15-CV-4907-DDC-KGS (EOF No. 84)). In the view of SourceAmerica and Lake-view, the Kansas agency has taken a different position on appeal by denying an ongoing interest in the preliminary injunction.
This argument is incorrect and immaterial. It is incorrect because the Kansas agency never argued for continuation of the preliminary injunction after the arbitration decision. In district court, the Kansas agency explained that it was “adopting] the position and the reasoning of the [Army].” State of Kansas’s Response Memorandum at 1, Kansas v. United States, No. 15-CV-4907-DDC-KGS (EOF No. 84). The Army’s position was that the preliminary injunction should remain in place on appeal “to the extent it ha[d] not already dissolved on its own terms.” United States’ Response at 5, Kansas v. United States, No. 15-CV-4907-DDC-KGS (EOF No. 81) (emphasis added). ■ Thus, the Kansas agency never, reversed its position. . But-even if. the Kansas agency had done so, the reversal would-have been immaterial because ;the district court did not resurrect and extend the injunction.
SourceAmerica and Lakeview also argue that the dispute is capable of repetition yet evading review. But' SourceAmerica and Lakeview have failed to show a reasonable expectation for the Kansas agéncy to again face the alleged illegality.
SourceAmerica and Lakeview seem to make four arguments:
1. Similar disputes will arise involving SourceAmerica or other entities.
2. District courts will issue preliminary injunctions in similar cases.
3. This appeal provides us with our only ‘chance to review the district court’s actions and reasoning.
4. The Kansas agency will again face the alleged illegality because the Army might disobey the arbitration decision.
These arguments are unpersuasive.
The first argument is that SourceAmeri-ca and others are often involved in similar disputes. But this argument is irrelevant. Under our precedent, we ask whether a reasonable expectation exists for the plaintiff (the Kansas agency) to again face the alleged illegality. See Part II, above.- We do not ask whether the defendants or other entities might become involved in similar disputes.
. The second argument is that district courts will issue preliminary injunctions in similar cases. But again, the pertinent question is whether the Kansas agency will
The third argument is that this appeal is the sole chance for us to review the district court’s actions and reasoning. For this argument, ■ SourceAmerica and Lakeview point out that the Kansas agency had sought only a preliminary injunction, not a permanent injunction. The. absence of a request for a permanent injunction could arguably preclude further, review, but would not subjeqt the Kansas agency i to recurrence of the dispute,
Finally, SourceAmerica and Lakeview insist that the Kansas agency should reasonably expect to confront the same dispute again. But in their supplemental brief on mootness, SourceAmerica and Lake-view do not explain the reason for such an expectation.
At oral argument, SourceAmerica and Lakeview suggested that the dispute is capable of repetition because the Army might disobey the arbitration, decision. This suggestion was based on two arguments. Both are unconvincing.
The first argument is that the Army asked the arbitration panel to vacate its decision. This argument is unsupported and illogical. The argument is unsupported because the appellate record does not include a motion to vacate the arbitration decision.
The second' argument is that the panel member chosen by the Army wrote a dissenting opinion. In this dissent, the panel member concluded that the arbitration proceedings lacked fundamental fairness. But this conclusion is immaterial: The disagreement of a panel member selected by the Army does not suggest that the Army would refuse to obey the arbitration panel’s ultimate decision.
Based on the arguments presented by SourceAmerica and Lakeview, we have no reason to expect the-Army to disobey the arbitration decision. And more generally, SourceAmerica and Lakeview have- not shown a reasonable expectation that the Kansas agency wifi again be subject to the alleged illegality. Accordingly, the appeal is moot.
This argument was presented in Kentucky v. United States ex rel. Hagel,
During the pendency of the appeal, the Army awarded the contract to another contractor, but the arbitration panel then issued a decision in favor of the Kentucky agency. Id. at 594-95. Though these developments would ordinarily moot the appeal, the state agency expressly argued that the same dispute would “keep occurring every time there is a solicitation for dining facility attendant services.” Kentucky v. United States, No. 12-6610, Appellant’s Letter Br. at 5 (6th Cir. Apr. 7, 2014). Based on this argument, the Sixth Circuit Court of Appeals decided that the dispute was capable of repetition yet evading review. Kentucky,
[T]he history of these parties demonstrates that this scenario will likely play out again between them in the future. At roughly five-year intervals, the Army solicits bids for dining-facility-attendant services. On at least two prior occasions, [the Kentucky agency] has challenged the Army’s decision that a solicitation is not governed by the [Randolph-Sheppard] Act. It does not appear likely that the Army will stop needing dining-faeility-attendant services, nor does it appear likely that [the Kentucky agency] will stop asserting that the [Randolph-Sheppard] Act applies to these contracts.
Id. at 597 (citations omitted). As this explanation reflects, the Sixth Circuit was persuaded by a case-specific argument that the dispute would likely recur: The Army would continue to need dining services when the current contracts expired, and the state agency would continue to assert that the Randolph-Sheppard Act applied.
If SourceAmerica and Lakeview had made a similar argument, I would ultimately have agreed with the majority. But SourceAmerica and Lakeview didn’t.
The majority points out that SourceAm-erica and Lakeview contended that Kentucky ⅛ reasoning applies here. Op. at 1239. But, as the majority points out, Sour-ceAmerica and Lakeview asserted that Kentucky applied only on the ground that they could expect a motion to stay the award of a contract pending arbitration involving these parties. Op. at 1239 (quoting Appellants’ Supp. Br. at 7). But Sour-ceAmerica and Lakeview never say why they should expect the Kansas agency to move for a stay.
SourceAmerica and Lakeview could instead have argued, as the majority does here, that the Kansas agency would face the same issue because of the need to hire a new contractor when the current contract expires. But SourceAmerica and Lakeview never made this argument, and the majority does not point to anything that could be interpreted as such an argument.
The majority also points out that SourceAmerica and Lakeview cited Kingdom-ware Technologies, Inc. v. United States, — U.S. -,
We are called upon to consider only the arguments presented by the parties—not the arguments that the parties could have raised. See Modoc Lassen Indian Hous. Auth. v. HUD,
. These defendants had intervened in district court.
. Lakeview is a nonprofit entity that provides employment opportunities to individuals with significant disabilities.
. SourceAmerica is a nonprofit entity that supports Lakeview and similarly situated nonprofit entities.
. We need not address whether the district court would have had jurisdiction to resurrect and extend the injunction while this appeal was pending,
. At one point in their supplemental brief, SourceAmerica and Lakeview argue:
Moreover, Kansas’s position all but guarantees that these issues will not only be litigated in some future case, they will be litigated again in this case. Kansas’s position is that since it won in arbitration, SourceAmerica and Lakeview "will be unable to bid for the contract,” and that if Kansas should ”need[] to” enforce the award, it would file for mandamus in "a new proceeding.” Kansas’s view is that the arbitration precludes SourceAmerica and Lakeview from receiving the Fort Riley contract, notwithstanding the fact that the arbitration panel refused to allow SourceAmerica and Lakeview the opportunity to even be heard in that forum.
Appellants’ Supp. Br. at 8-9 (alteration & emphasis in original) (citations omitted). This argument is difficult to understand; it consists solely of an assertion followed by two sentences allegedly stating a view and,a "position” held by the Kansas agency. It is unclear what is meant by the assertion that "these issues .., -will be litigated again in this case." Id. (emphasis in original). I do not see how any issues, cpuld be litigated again in this case, for this case will soon be over. In any event, this argument does not explain why the Kansas agency will again be subjected to the alleged illegality.
. SourceAmerica and Lakeview might be confusing a motion for a new proceeding with a motion to vacate. Between the arbitration hearing and the decision, the Army moved for a new proceeding. Oral argument was the first time that anyone mentioned an effort by the Army to vacate the arbitration decision,
. The majority states that SourceAmerica and Lakeview cited Kingdomware and argued that " ‘[t]he same is true here.’ " Op. at 1239. The quotation from SourceAmerica and Lake-view’s brief involved only Kingdomware's reference to the first element of the exception: “Similarly, the Supreme Court held last year that an appeal from a government procurement dispute is not rendered moot when the time period in which it arises is too short 'to complete judicial review of the lawfulness of the procurement.' Kingdomware Techs., Inc. v. United States [— U.S. -]
. At oral argument, the Kansas agency acknowledged that if the appeal is considered moot, we should vacate the district court’s preliminary-injunction order and related rulings. See Kan. Judicial Rev. v. Stout,