Commonwealth of KENTUCKY, Education and Workforce Development Cabinet, Office for the Blind, Plaintiff-Appellant, v. UNITED STATES of America, by and through the Honorable Chuck HAGEL, Secretary of Defense, and the Honorable John McHugh, Secretary of the Army, Defendant-Appellee.
No. 12-6610
United States Court of Appeals, Sixth Circuit.
July 21, 2014.
In his briefing, Cordell claims that Hudson clearly established that “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” 503 U.S. at 9, 112 S.Ct. 995. While there may be much sense in stating that it is inappropriate to grant qualified immunity whenever a jury could find that a jail official acted with malicious and sadistic intent, it seems that Plumhoff requires us to frame Cordell‘s Eighth Amendment right at a lower level of generality. In the past, we have held that “if there is a genuine issue of fact as to whether an officer‘s use of force was objectively reasonable, then there naturally is a genuine issue of fact with respect to whether a reasonable jail official would have known such conduct was wrongful.” Kostrzewa v. City of Troy, 247 F.3d 633, 642 (6th Cir. 2001). Under this standard, as discussed above, we conclude that any reasonable official would know that ramming a handcuffed and controlled prisoner headfirst into a concrete wall is an unreasonable method of regaining control of a prisoner in a hallway occupied only by other jail officials. See Schreiber, 596 F.3d at 333. Therefore, Cordell‘s rights were clearly established as of July 20, 2009, and granting qualified immunity at this time is inappropriate.
IV. CONCLUSION
We recognize that “the limits of [the Eighth Amendment] are not easily or exactly defined,” but we believe “broad and idealistic concepts of dignity, civilized standards, humanity, and decency are useful and usable.” Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968). In this case, if Cordell‘s contentions are accurate, it would appear that Deputy McKinney behaved brutally, even cruelly, toward Cordell. At this point, however, the facts are not crystallized enough to award judgment as a matter of law to either party. Therefore, we REVERSE the district court‘s grants of summary judgment and qualified immunity and REMAND for proceedings consistent with this opinion.
Before: MOORE, WHITE, and DONALD, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
The Randolph-Sheppard Act (“the Act“), ch. 638, 49 Stat. 1559 (1936) (codified at
I. BACKGROUND
A. Randolph-Sheppard Act
In 1936, Congress passed the Randolph-Sheppard Act to “enlarge[e] the economic opportunities of the blind” by giving them priority in the bidding of contracts to operate vending facilities on federal properties.
When everything runs smoothly, the priority works as follows: the Secretary of Education (“the Secretary“) designates a “licensing agency” for each state.
In the event that disputes arise, the Act and DOE‘s regulations provide for arbitration between the state licensing agency and the federal agency soliciting vending-facility services. See
B. Facts and Procedural History
In Kentucky, OFB is the state licensing agency. In this role, it licenses and trains blind vendors. It also submits bids on their behalf for vending-facility-services contracts on federal properties. In 1995, the OFB appointed James E. Hardin as its blind licensed vendor and submitted a bid for the contract with the Army to perform full-food and dining-facility-attendant services1 in Fort Campbell‘s cafeteria. R. 1
In 2000, OFB contacted the Army regarding direct negotiations for the extension of the Fort Campbell contract. R. 1-5 at 5 (2002 Arbitration Decision) (Page ID # 49). The Army declined the invitation and posted a new solicitation for dining-facility-attendant services. Id. at 6 (Page ID # 50). The Army eventually declared that “[t]he new solicitation [would be] administered as a SBA ... set aside procurement and not as a Randolph-Shep[p]ard procurement.” Id. at 7 (Page ID # 51). OFB filed for arbitration pursuant to
In 2007, the Army solicited bids for the performance of full-food and dining-facility-attendant services. Again, DOE and the Army adjudged OFB‘s bid competitive, and OFB received the contract. R. 1 at 5 (Compl. at ¶ 10) (Page ID # 5). First Choice2 performed the contract.
In August 2012, the Army decided to rely once again upon its own cooks for meal preparation and service. See R. 1-4 at 1 (Brinly Letter) (Page ID # 41). It also solicited bids for dining-facility-attendant services, a solicitation that the Army classified as a set aside for SBA HUBZones. See R. 1-2 at 1 (Solicitation) (Page ID # 36). OFB objected to the SBA HUBZones classification. R. 1-4 at 1-3 (Brinly Letter) (Page ID # 41-43). In a letter, OFB cited the 2002 arbitration decision, which held that dining-facility-attendant services were covered by the Act. Id. at 2-3 (Page ID # 42-43). The Army replied, stating that its “interpretation of the [Act] is that it applies only when contracting for the operation of military dining facilities,” meaning full-food services. R. 1-6 at 1 (Fletcher-Schiewe Letter) (Page ID # 59).
As a result of being rebuffed, OFB demanded arbitration with the DOE on September 14, 2012. R. 1-7 at 17 (Arbitration Compl.) (Page ID # 78). The arbitration complaint asked DOE to convene an arbitration panel, to find the Army in violation of the Act, and to order the Army to comply with the terms of the Act. Id. at 16-17 (Page ID # 77-78). Three days later, OFB filed a self-styled “Motion and Complaint for Temporary Restraining Order and Preliminary Injunction” in federal district court. R. 1 at 1 (Compl.) (Page ID # 1). This filing requested that the district court hold an expedited hearing and issue a TRO or preliminary injunction “prohibiting the Army from either conducting the procurement and/or making award to an offeror pursuant to [the solicitation] until such time as the arbitration proceeding required by
On October 9, 2012, the district court held a hearing on the preliminary injunction. It issued its decision two weeks later on October 23, denying the injunction and dismissing the action without prejudice. See R. 11 at 11 (D.Ct.Op.) (Page ID # 420). The district court found that it lacked jurisdiction to consider OFB‘s request because OFB had not exhausted its administrative remedies. Id. at 9-10 (Page ID # 418-19). In the alternative, the district court stated that “even if [it] were to find it had jurisdiction to issue a preliminary injunction, [OFB] has not shown that such an ‘extraordinary remedy’ is warranted in this case.... [I]n light of the DOE‘s evolving views on the applicability of the [Act] to [dining-facility-attendant]-only contracts, it is not clear that the [OFB] will prevail on the merits.” Id. at 11 (Page ID # 420). The Army alerted the district court to the fact that the blind licensed vendor‘s contract would expire on March 31, 2013 and that Federal Acquisition Regulation § 52.217-8 barred the Army from extending the contract further while arbitration was pending. R. 13 at 1 (Def. Mot. for Correction) (Page ID # 422); see also R. 10 at 2 (Def.Supp.Resp.) (Page ID # 406). The district court reaffirmed its finding that it lacked jurisdiction. R. 18 at 1 (D. Ct. Oct. 30, 2012 Order) (Page ID # 437).
On November 2, 2012, OFB filed a Motion to Alter or Amend pursuant to
OFB appealed the district court‘s rejection of its Rule 59 motion to this court on December 20, 2012. R. 23 at 1 (Notice of Appeal) (Page ID # 467). While its appeal was pending, on January 31, 2013, OFB filed in this court a Motion for Injunction Pending Appeal pursuant to Federal Rule of Appellate Procedure 8. In its motion, OFB recited the arguments it raised in district court and requested that this court enjoin the Army from awarding the dining-facility-attendant contract until arbitration was completed. In response, the Army argued that this court had jurisdiction to consider only whether the district court erred in finding that it did not have jurisdiction to rule on the merits of OFB‘s claims. Additionally, the Army filed a Motion to Dismiss Appeal, asserting that OFB‘s appeal is moot because the Army had already awarded the contract.
We denied both motions on March 28, 2013. Kentucky Educ. & Workforce Dev. Cabinet Office for the Blind v. United States, No. 12-6610, at *3 (6th Cir. Mar. 28, 2013) (unpublished order) (“Office for the Blind“). We held that this situation was “capable of repetition, yet evading review” and, thus, not moot. Id. at *2 (quoting In re Search of Fair Fin., 692 F.3d 424, 428 (6th Cir.2012)). Further
Arbitration continued between the Army and OFB, and on February 14, 2014, the arbitration panel issued a divided decision, siding with OFB. The arbitration panel concluded that the Act covers the dining-facility-attendant services at Fort Campbell and that the Army violated the Act by soliciting bids as a HUBZones set aside. Arb. Dec. at 26, 27. Accordingly, the panel ordered the Army to terminate its contract with its current vendor on March 31, 2014 and to commence negotiations with OFB immediately for a new contract to take effect on April 1, 2014. Id. at 28. OFB has continued its appeal, and we asked the parties to supply letter briefing regarding whether the appeal is now moot.
II. ANALYSIS
In its briefing before this court, OFB asks us to hold that the district court erred in finding that it lacked jurisdiction to issue a preliminary injunction, which could have stayed the awarding and implementation of the contract pending arbitration. At this point in time, the Army has already awarded the contract, arbitration has already been completed, and OFB has filed another suit in district court, seeking to enforce the arbitration panel‘s decision. Therefore, two questions arise: (1) is OFB‘s appeal moot; and (2) if not, did the district court err in its jurisdictional finding? We answer the first question in the negative and the second one in the affirmative.
A. Mootness
“Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)). “When—for whatever reason—the dispute discontinues or we are no longer able to grant meaningful relief to the prevailing party, the action is moot, and we must dismiss for lack of jurisdiction.” United States v. Blewett, 746 F.3d 647, 661 (6th Cir.2013) (Moore, J., concurring) (citing Knox v. Serv. Emp. Int‘l Union, ----- U.S. ----, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)); accord Chafin v. Chafin, ----- U.S. ----, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). “[I]t is not enough that a dispute was very much alive when suit was filed.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 461, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (quoting Lewis, 494 U.S. at 477, 110 S.Ct. 1249). There must be a live controversy “at every stage of the litigation” for us to have Article III jurisdiction. Lawrence v. Blackwell, 430 F.3d 368, 370-71 (6th Cir.2005).
This doctrine, however, is not without its exceptions. “[A] case will not be considered moot if the challenged activity is capable of repetition, yet evading review.” Id. at 371; see also Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). “The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the
The time between when the Army publishes its solicitation of bids and when the new vendor‘s contract goes into effect is exceptionally short. In this case, the Army posted its solicitation on August 28, 2012 and established a closing date of September 19, 2012. R. 1 at 7 (Compl. at ¶¶ 15, 17) (Page ID # 7). OFB‘s contract was set to expire December 31, 2012, though the Army extended it three months. See R. 10 at 2 (Def.Supp.Resp.) (Page ID # 406). However, the Army claims that regulations prevented it from extending it further. See Appellee Br. at 10 & n.4 (citing
B. Jurisdiction
The district court denied OFB‘s application for a preliminary injunction because OFB had not exhausted its administrative remedies, namely arbitration. In doing so, the district court found that it lacked jurisdiction to decide the case. In self-described “dicta,” see R. 22 at 2 (D. Ct. Dec. 4, 2012 Order) (Page ID # 464), the district court also found that OFB‘s application lacked merit because “it [was] not clear that [OFB] [would] prevail on the merits,” R. 11 at 11 (D.Ct.Op.) (Page ID # 420). We stated, in our March 28, 2013 order, that “[t]he district court did not abuse its discretion in denying the preliminary injunction.” Office for the Blind, No. 12-6610, at *2. The parties, however, do not read our order as disposing of their case, and admittedly, the order is not a model of clarity. As a result, we address the parties’ concerns below, and we hold that exhaustion is not a jurisdictional prerequisite and that OFB has demonstrated that it meets an exception to the Act‘s statutory exhaustion requirements.
1. Completing Arbitration Is Not a Jurisdictional Prerequisite
In recent years, the Supreme Court has recognized that jurisdiction “is a word of many, too many, meanings” used far too loosely by federal courts. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996)). Too often, the Court has observed, federal courts “dismiss[] ‘for lack of jurisdiction’ when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (internal quotation marks omitted). The Court has acknowledged that “the distinction between jurisdictional conditions and claim-processing rules can be confusing in practice.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). However, in an effort to avoid “drive-by jurisdictional rulings,” Steel Co., 523 U.S. at 91, 118 S.Ct. 1003, the Court has instituted a clear-statement rule requiring Congress to “state[] [clearly] that a threshold limitation on a statute‘s scope
Under this rule, the Act‘s exhaustion requirement is not jurisdictional. Section 107d-1(b) provides that
Whenever any [s]tate 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 [the Act] or any regulations issued thereunder ... such licensing agency may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute pursuant to section 107d-2 of this title, and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter.
This language does not rise to the level of a clear statement. Section 107d-1 is simply not phrased in jurisdictional terms. Our decision in Allen v. Highlands Hosp. Corp., 545 F.3d 387 (6th Cir.2008), is helpful here. In that case, we held that an exhaustion requirement in the Age Discrimination in Employment Act (“ADEA“),
The Army cites a variety of cases and argues that they hold otherwise. We are unconvinced. First, most of the cases predate the Supreme Court‘s decisions in Arbaugh and Muchnick, which altered how we interpret exhaustion requirements. See, e.g., Emswiler v. CSX Transp., Inc., 691 F.3d 782, 789 (6th Cir.2012) (collecting cases in which we revisited prior holdings after Arbaugh); Hoogerheide v. IRS, 637 F.3d 634, 636 (6th Cir.2011) (same). Second, the Army appears to confuse a mandatory exhaustion requirement with a jurisdictional one. There is a subtle, but important, difference. The ADEA‘s requirement that a plaintiff file a complaint with the EEOC before commencing a civil action in district court is certainly not optional. Allen, 545 F.3d at 401. Federal courts, however, can craft prudential exceptions to non-jurisdictional exhaustion requirements and grant relief in extraordinary cases, as explained below. See McCarthy v. Madigan, 503 U.S. 140, 146-49, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (noting various exceptions to exhaustion requirements). On the other hand, if a jurisdictional requirement is not met, then a federal court must dismiss the suit, regardless of any special considerations or circumstances. See Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (noting that forfeiture and waiver arguments could not cure failure to comply with jurisdictional time limitations). The bar for establishing a jurisdictional requirement is quite high and not to be inferred lightly. For the reasons stated above, we do not believe the Act contains statements sufficient to clear this hurdle
2. OFB Meets an Exception to the Act‘s Jurisprudential Exhaustion Requirement
Even though the Act‘s exhaustion requirement is not jurisdictional, it has bite. See, e.g., Dep‘t for the Blind, 424 F.3d at 1228; Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 104 (D.C.Cir.1986); Alabama Dep‘t of Rehab. Servs. v. U.S. Dep‘t of Veterans Affairs, 165 F.Supp.2d 1262, 1270 (M.D.Ala. 2001). In most cases, a failure to exhaust administrative remedies is fatal to a suit in federal court. See, e.g., Hoogerheide, 637 F.3d at 634 (collecting cases). Exhaustion requirements, like this one, “serve[] the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” McCarthy, 503 U.S. at 145, 112 S.Ct. 1081. “[E]xhaustion principles apply with special force when ‘frequent and deliberate flouting of administrative processes’ could weaken an agency‘s effectiveness by encouraging disregard of its procedures.” Id. (quoting McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)). That said, exhaustion is an area of law in which “sound judicial discretion governs” “where Congress has not clearly required exhaustion [as a jurisdictional matter].” Id. at 144, 112 S.Ct. 1081 (citing McGee v. United States, 402 U.S. 479, 483, n. 6, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971)). In accordance with that discretion, the federal courts have recognized at least three prudential exceptions to exhaustion requirements. Exhaustion may be excused if a litigant can show: (1) that requiring exhaustion will result in irreparable harm; (2) that the administrative remedy is wholly inadequate; or (3) that the administrative body is biased, making recourse to the agency futile. Id. at 146-48, 112 S.Ct. 1081; Randolph-Sheppard Vendors, 795 F.2d at 104-108.
In this case, we conclude that exhaustion should have been excused because requiring the completion of arbitration prior to filing in federal court for a preliminary injunction would likely result in irreparable harm. Under OFB‘s conception of the Act and its accompanying regulations, the Army must negotiate exclusively with OFB for the successor dining-facility-attendant-services contract, see
C. Merits and Remedy
Having settled that the district court had jurisdiction to consider OFB‘s request for an injunction, we turn to the district court‘s alternative conclusion, denying the application on the merits. In reviewing a district court‘s decision to deny a preliminary injunction, we evaluate the same four factors that the district court does: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass‘n v. Schimmel, 751 F.3d 427, 430 (6th Cir.2014) (en banc) (internal quotation marks omitted). “Whether the movant is likely to succeed on the merits is a question of law we review de novo.” Id. (citing NAACP v. City of Mansfield, 866 F.2d 162, 169 (6th Cir.1989)). “We review for abuse of discretion, however, the district court‘s ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief.” Id. (quoting Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir.2005)). “This standard is deferential, but [we] may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.” Id. (citing NAACP, 866 F.2d at 166-67). In addition, we must remember that “[t]he party seeking a preliminary injunction bears a burden of justifying such relief, including showing irreparable harm and likelihood of success.” Michigan Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 382 (6th Cir.2014) (internal quotation marks omitted).
The district court denied OFB‘s request for a preliminary injunction because it found—in two, rather conclusory sentences—that OFB had not shown that it was likely to succeed on the merits. R. 11 at 11 (D.Ct.Op.) (Page ID # 420). Since the district court rendered its decision, however, a DOE arbitration panel has ruled that the Act applies to the dining-facility-attendant-services contract. Given this change in circumstances and the unusual posture of this case, we think it best to allow the district court to consider whether any injunctive relief is available or appropriate at this time. See City of Pontiac, 751 F.3d at 432-33. Therefore, we vacate the district court‘s decision and remand for further proceedings consistent with this opinion.
III. CONCLUSION
In summary, OFB‘s application for a preliminary injunction is not moot. Even though the contract it wished the district court to stay went into effect, the alleged wrong is capable of repetition, yet evading review, and thus meets an exception to the mootness doctrine. In addition, OFB‘s failure to exhaust its administrative remedies did not deprive the district court of jurisdiction to hear this case. Given that the arbitration panel has rendered its decision and another suit between the parties has commenced since the district court‘s deci
KAREN NELSON MOORE
UNITED STATES CIRCUIT JUDGE