NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VETERANS CONTRACTING GROUP, INC.,
Plaintiff-Appellant
v.
UNITED STATES, WILLIAMS BUILDING
COMPANY, INC.,
Defendants-Appellees
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2018-1410
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-01188-CFL, Judge Charles F.
Lettow.
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Decided: November 20, 2018
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JOSEPH ANTHONY WHITCOMB, Rocky Mountain Disa-
bility Law Group, Denver, CO, argued for plaintiff-
appellant. Also represented by TIMOTHY TURNER, Whit-
comb, Selinsky, McAuliffe, PC, Denver, CO.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by ALISON VICKS, TARA
2 VETERANS CONTRACTING GROUP v. UNITED STATES
K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H.
HUNT.
JOHN M. MANFREDONIA, Manfredonia Law Offices,
LLC, Cresskill, NJ, for defendant-appellee Williams
Building Company, Inc.
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Veterans Contracting Group, Inc., (“VCG”) appeals
from a decision of the United States Court of Federal
Claims (“the Claims Court”) holding that the Small
Business Administration (“SBA”) did not act arbitrarily,
capriciously, or contrary to the SBA’s regulations by
applying the SBA’s requirement for unconditional service-
disabled veteran ownership of a small business in order to
qualify for service-disabled veteran-owned small business
(“SDVOSB”) set-aside contracts. Veterans Contracting
Grp., Inc. v. United States,
135 Fed. Cl. 316, 330 (2017).
The SBA applied the standard for unconditional
ownership articulated in The Wexford Grp. Int’l, Inc., SBA
No. SDV-105,
2006 WL 4726737 (June 29, 2006)
(“Wexford”) to VCG and determined that VCG was not at
least 51% unconditionally owned by a service-disabled
veteran as required by
13 C.F.R. § 125.12, removed VCG
from SDVOSB eligibility, and disqualified VCG from
receiving a contract award from the U.S. Army Corps of
Engineers (“the Corps”) set aside for SDVOSBs. We have
appellate jurisdiction under
28 U.S.C. § 1295(a)(3). We
dismiss the appeal as moot.
The appeal is moot because each of the remedies VCG
originally requested is now beyond the power of this court
to grant. See Calderon v. Moore,
518 U.S. 149, 150 (1996)
(holding that an appeal should be dismissed as moot when
“a court of appeals cannot grant any effectual relief
VETERANS CONTRACTING GROUP v. UNITED STATES 3
whatever”); North Carolina v. Rice,
404 U.S. 244, 246
(1971) (“Mootness is a jurisdictional question because the
Court is not empowered to decide moot questions or
abstract propositions.”) (citations omitted).
In its complaint, VCG sought: (1) an injunction
ordering the Corps to award, or at least to consider
awarding, the contract at issue to VCG; (2) a declaration
restoring VCG’s SDVOSB eligibility; (3) a declaration that
the SBA acted unreasonably and contrary to law and
regulations when it applied Wexford and determined that
VCG was ineligible for the SDVOSB program; and (4) fees
and expenses of attorneys. We conclude that subsequent
events have rendered the first two remedies moot, and the
latter two are insufficient on their own to create an
Article III case or controversy.
VCG’s request for retroactive award of the contract at
issue is moot because the government terminated the
contract. See Durable Metal Prods., Inc. v. United States,
No. 93-5090,
11 F.3d 1071 (Table) (Fed. Cir. 1993) (hold-
ing that a bid protestor’s request for an injunction was
moot because the solicitation had been properly can-
celled), and PRC Inc. v. Widnall,
64 F.3d 644, 645 (Fed.
Cir. 1995); see also Coastal Envtl. Grp., Inc. v. United
States,
114 Fed. Cl. 124, 131 (2013) (“[T]he Court of
Federal Claims has consistently found that the cancella-
tion of a procurement renders a protest of that procure-
ment moot.”) (collecting cases).
VCG also argues that the SBA’s reliance on Wexford
to remove VCG from SDVOSB eligibility was erroneous,
and thus VCG should have its SDVOSB eligibility
restored. Since this appeal was taken, the SBA has
promulgated new regulations that change the definition of
the requisite unconditional ownership by a service-
disabled veteran, effectively overturning Wexford. See
Ownership and Control of Service-Disabled Veteran-
Owned Small Business Concerns,
83 Fed. Reg. 48,908
4 VETERANS CONTRACTING GROUP v. UNITED STATES
(Oct. 1, 2018) (to be codified at
13 C.F.R. § 125). These
regulations now govern VCG’s eligibility as an SDVOSB.
As a result, VCG’s request for restoration of its SDVOSB
eligibility under previous SBA regulations is moot.
Neither of VCG’s two remaining requests, for
declaratory relief and for fees and expenses of attorneys,
prevents dismissal for mootness. A request for
declaratory relief, in and of itself, is not sufficient to
confer jurisdiction on an Article III court where there is
no “substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory
judgment.” Preiser v. Newkirk,
422 U.S. 395, 402 (1975).
There is no Article III case or controversy where the case
has become “an abstract dispute about the law, unlikely
to affect [the party] any more than it affects other[s].”
Alvarez v. Smith,
558 U.S. 87, 93 (2009). Whether the
SBA acted arbitrarily, capriciously, or contrary to the
SBA’s regulations by applying the now-defunct Wexford
standard to define unconditional ownership does not
affect VCG in any future procurement, and thus it is
exactly the type of moot, abstract dispute excluded from
our jurisdiction.
VCG also asserted that its request for fees and
expenses of attorneys —made at oral argument but not in
either of its briefs—is sufficient to prevent dismissal for
mootness, but a free-standing claim for fees and expenses
of attorneys “is not a viable basis for avoiding mootness,”
Totolo/King Joint Venture v. U.S., 431 F. App’x 895 (Fed.
Cir. 2011). See Lewis v. Cont’l Bank Corp.,
494 U.S. 472,
480 (1990) (explaining that an “interest in attorney’s fees
is, of course, insufficient to create an Article III case or
controversy where none exists on the merits of the
underlying claim”). VCG’s occasional requests for fees
and expenses of attorneys do not grant this court
jurisdiction to decide an otherwise moot case.
VETERANS CONTRACTING GROUP v. UNITED STATES 5
Accordingly, there is no Article III case or controversy
for this court to resolve, and we dismiss this appeal as
moot.
DISMISSED
