American K-9 Detection Services, LLC v. United States ( 2021 )

In the United States Court of Federal Claims
(Filed: 7 June 2021*)
NOT FOR PUBLICATION
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AMERICAN K-9 DETECTION *
SERVICES, LLC, *
*
v. *
*
THE UNITED STATES, *
* No. 20-1614
Defendant, *
*
and *
*
MICHAEL STAPLETON *
ASSOCIATES, LTD., *
*
Defendant-Intervenor. *
*
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GLOBAL K9 PROTECTION GROUP, LLC, *
*
Plaintiff, *
*
v. *
*
THE UNITED STATES, *
* No. 21-1165
Defendant, *
*
and *
*
MICHAEL STAPLETON *
ASSOCIATES, LTD., *
*
Defendant-Intervenor. *
*
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*
This Order was originally filed under seal on 28 May 2021 pursuant to the protective order in this case. The Court
provided the parties the opportunity to review this Order for any proprietary, confidential, or other protected information
and submit proposed redactions. On 7 June 2021, counsel confirmed no party seeks redaction of the Order. The Order is
reissued with a few minor, non-substantive corrections.
ORDER
I. Introduction
The initial complaint in this bid protest was filed on 18 November 2020. See Compl.,
ECF No. 1. The schedule for this case has been modified many times, and the government has
filed three separate supplements to the administrative record. See, e.g. Order, ECF No. 80;
Notice of Filing, ECF No. 64; Notice of Filing, ECF No. 76; Notice of Filing, ECF No. 81. The
government has repeatedly declined to voluntarily stay the contract, and the Court last set a
briefing schedule on 14 May 2021. See Order, ECF No. 74; Order, ECF No. 80. In setting
previous briefing schedules, the Court recognized the “current MJAR briefing schedule . . .
accommodates plaintiffs’ requests for an expedited decision on the merits” and noted the effect
past delays by the government have on plaintiffs’ efforts to make timely filings. Id. at 2.
On 19 May 2021, following an order consolidating its case with the present case, Global
K9 Protection Group, LLC (“GK9”) filed an “amended and restated complaint” and a motion for
judgment on the administrative record. See Am. and Restated Compl., ECF No. 82; Global K9
Protection Group, LLC’s Mot. for J. on the Administrative R. and Incorporated Br., ECF No. 83.
Also on 19 May 2021, American K-9 Detection Services, LLC (“AMK9”) filed a motion for
judgment on the administrative record. See Plaiontiff’s [sic] Mot. for J. on the Administrative
R., ECF No. 84. On 20 May 2021, the government filed a motion to strike GK9’s amended
complaint and GK9 and AMK9’s motions for judgment on the administrative record or, in the
alternative, for a 14-day extension to the briefing schedule. See Def.’s Mot. to Strike Am.
Compl. and Mots. for J. on the Administrative R., ECF No. 85 (“Mot. to Strike”). The Court
ordered expedited briefing on the government’s motion on 21 May 2021. See Order, ECF No.
86. AMK9 and GK9 filed responses to the government’s motion to strike on 25 May 2021, and
the government filed a reply in support of its motion to strike on 26 May 2021. See Pl. AMK9’s
Resp. to the Gov.’s Mot. to Strike, ECF No. 87 (“AMK9 Resp.”); Global K9 Protection Group’s
Resp. to the U.S.’ Mot. to Strike, ECF No. 89 (“GK9 Resp.”); Def.’s Reply in Supp. of its Mot.
to Strike, ECF No. 91 (“Gov. Reply”).
II. The Government’s Motion to Strike GK9’s Amended Complaint
In support of its motion to strike GK9’s amended complaint, the government argues GK9
“did not file a motion for leave to amend its complaint . . . and did not seek consent from the
other parties, including the United States, before doing so.” Mot. to Strike at 5. According to
the government, “GK9’s amended complaint . . . is improper under the Court’s rules” because
“[c]onsent of the parties or leave granted by the Court is required in all cases that do not involve
an amendment within 21 days of filing or prior to the filing of a responsive pleading, neither of
which applies in this case.” Id. In response to the government’s motion, GK9 argues RCFC 15,
which governs amendments to pleadings, “has not been consistently applied” and “some judges
on the Court of Federal Claims have interpreted Rule 15(a)(1)(B) as allowing amendment as a
matter of right at any time until 21 days after a responsive . . . pleading or Rule 12 motion.”
GK9 Resp. at 2–3 (citing Quantum Research International, Inc. v. U.S., No. 17-1097, ECF No.
27 (September 19, 2017)). In the alternative GK9 states, “[t]o the extent the Court would hold
that GK9 needed to seek consent from the Court, GK9 respectfully moves to amend its
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complaint.” GK9 Resp. at 4. In support of this request, GK9 notes its “amended complaint
raised grounds GK9 discovered from reviewing the . . . administrative record.” Id. at 2.
RCFC 15(a)(1)(B) provides: “A party may amend its pleadings once as a matter of
course . . . if the pleading is one to which a responsive pleading is required, 21 days after service
of a responsive pleading or 21 days after service of a motion under RCFC 12 . . . .” The
government and GK9 dispute whether the language of the rule allows GK9 to file an amended
complaint as of right “any time until 21 days after a responsive . . . pleading or Rule 12 motion.”
GK9 Resp. at 3; see also Mot. to Strike at 5 (“Consent of the parties or leave granted by the
Court is required in all cases that do not involve an amendment to a complaint within 21 days of
filing or prior to the filing of a responsive pleading, neither of which applies in this case.”). If a
party may not amend a pleading as of right, RCFC 15(a)(2) directs the Court to “freely give
leave [to amend the pleading] when justice so requires.” As GK9 notes, the amendments to its
complaint simply “raise grounds discovered, for the first time, in the administrative record”
based on information “GK9 could [not] have known or obtained before seeing the record.” GK9
Resp. at 3–4. This court previously noted a plaintiff in a bid protest case “should be granted
leave to amend its complaint to include allegations it could not have made prior to examining the
administrative record.”1 Knowledge Connections, Inc. v. U.S., 76 Fed. Cl. 6, 18 (2007) (citing
Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1582 (Fed. Cir. 1993) (noting the federal
rules “are quite permissive in permitting a party to amend its complaint to conform to the
evidence and to the positions taken at trial”)). The timing of GK9’s amended complaint, as well
as the fact GK9 did not have access to the full administrative record prior to filing its initial
complaint, means plaintiff satisfies the requirement for their amended complaint either as of right
or through the discretion of the Court. See RCFC 15(a)(1)(B) and RCFC 15(a)(2).
III. The Government’s Motion to Strike GK9 and AMK9’s Motions for Judgment on the
Administrative Record
In support of its motion to strike GK9 and AMK9’s motions for judgment on the
administrative record, the government argues AMK9’s motion “brings two new arguments that
were not disclosed in its second amended complaint of May 3, 2021 . . . (1) that USPS accepted a
late proposal from defendant-intervenor Michael Stapleton Associates [(‘MSA’)] [and] . . . (2)
that USPS should have rejected MSA’s proposal because MSA’s proposal allegedly used a font
size smaller than what USPS specified in response to questions from prospective bidders.” Mot.
to Strike at 2. According to the government, “AMK9 provided no reason in its motion why it
could not have sought leave to amend its complaint again as it had previously” to include the
alleged new claims, and the “omission is prejudicial to the United States because there may be
other pertinent documents that were not gathered from the existing record because AMK9 had
not made the new allegations.” Id. at 3. Similarly, the government asserts “GK9 raises a new
argument relating to the font size of MSA’s proposal that was not disclosed in its original
1
As Judge Lettow noted in Knowledge Connections, “in the context of a court’s consideration of cross-motions for
judgment on the administrative record, the ‘trial’ takes place on the administrative record.” See Knowledge
Connections, 76 Fed. Cl. at 17 (citing Bannum, Inc. v. U.S., 404 F.3d 1346, 1356 (Fed. Cir. 2005) (noting a
“judgment on an administrative record is properly understood as intending to provide for an expedited trial on the
record.”)).
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complaint” and “[t]he timing of this argument is prejudicial to the United States because there
may be other documents that are pertinent to GK9’s new allegations that were not gathered for
the existing administrative record.” Id. at 4. AMK9 argues in response to the government’s
motion to strike: (1) “a motion to strike must be directed to a pleading, which term has been
construed narrowly by the courts” but “the government does not identify any authority in support
of its motion to strike AMK9’s MJAR,” and (2) even if the Court were to consider the
government’s motion to strike, the government “cannot reasonably assert confusion [or] . . .
prejudice because it was the party responsible for filing a complete administrative record.”
AMK9 Resp. at 2–6 (internal quotation marks and citations omitted). GK9 responds, “[t]here is
no prejudice to the government at all in having to address issues apparent on the face of the
record.” GK9 Resp. at 4. GK9 also notes the government’s motion to strike is improper because
“the [g]overnment seeks not to strike any defense or redundant or scandalous material, but
information GK9 obtained from the [g]overnment’s administrative record.” Id.
This court has previously noted, “[c]ourts view motions to strike with disfavor and rarely
grant them.” Fisherman’s Harvest, Inc. v. U.S., 74 Fed. Cl. 681, 690 (2006). RCFC 12(f) states
the Court “may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” RCFC 7(a) notes the exhaustive list of what constitutes a
pleading under the RCFC, and Rule 7 does not include MJARs in the definition of a pleading.2
This court previously found a motion to strike “must be directed to a ‘pleading,’ which term has
been construed narrowly by the courts. Other court documents may not be attacked by a motion
to strike.” Fisherman’s Harvest, 74 Fed. Cl. at 690 (internal citation omitted). “[I]n particular, a
motion to strike may not be used to strike another motion.” Waltner v. U.S., 98 Fed. Cl. 737, 766
(2011) (quoting Fisherman’s Harvest, 74 Fed. Cl. at 690).
The government does not cite any authority suggesting the Court has the power to strike
arguments plaintiffs raise in their MJARs or any standard under which the Court should analyze
whether to strike arguments presented in an MJAR. See generally Mot. to Strike; Gov. Reply.
The language of RCFC 12(f) is clear the Court may “strike from a pleading” certain defenses or
any “redundant, immaterial, impertinent, or scandalous matter[s].” RCFC 12(f) (emphasis
added). Even if plaintiffs’ MJARs contained such “redundant, immaterial, impertinent, or
scandalous matter[s]”—which the government does not specifically allege—plaintiffs’ MJARs
are not pleadings and therefore are not proper targets for a motion to strike. See RCFC 7(a);
Fisherman’s Harvest, 74 Fed. Cl. at 690.
IV. The Government’s Request, in the Alternative, for an Additional 14 Days of Briefing
In the alternative to its motion to strike, the government “requests that the Court extend
the briefing schedule by 14 days to provide the United States Postal Service (‘USPS’) the
opportunity to gather any documents necessary to supplement the administrative record with any
documents pertaining to AMK9 and GK9’s new arguments.” Mot. to Strike at 1–2. The
government argues the additional time is necessary because “[i]t is prejudicial to the United
2
RCFC 7(a) states “only these pleadings are allowed”: “a complaint”; “an answer to a complaint”; “an answer to a
counterclaim designated as a counterclaim”; “a reply to any offset or plea of fraud contained in the answer”; “a
third-party pleading permitted under RCFC 14”; and “if the court orders one, a reply to an answer.”
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States to be put in the position of being required to gather new documents to supplement the
record in response to [plaintiffs’] new allegations at the same time it is responding to [plaintiffs’]
motion[s] for judgment on the administrative record.” Id. at 4. With respect to AMK9’s
allegation MSA’s submission was past the deadline, the government points specifically to an
email from MSA to the contracting officer detailing a different timestamp as an example of
additional evidence the government seeks to add to the administrative record. Mot. to Strike at
3–4. In response to AMK9 and GK9’s allegations MSA’s proposal violated the agency’s
guidance on the appropriate font size, the government simply claims it has “asked USPS to
gather any other documents or communications relating to the specific question and answer from
bidders that [plaintiffs] cite[] . . . that would pertain to [plaintiffs’] new allegations.” Id.
The government maintains “USPS has determined that it does not agree to a voluntary
stay” of proceedings of the rollout schedule for contract performance “for any events occurring
after June 17, 2021.” Joint Status Report, ECF No. 73 at 2–3 (government response to the
Court’s Order for an update on USPS’s position regarding staying the rollout of contract
performance). The government argued in response to plaintiffs’ request for a revised schedule
and a hearing on plaintiffs’ motions for preliminary injunction: “if USPS does not agree to a
voluntary stay . . . a hearing on plaintiffs’ preliminary injunction motions should be unnecessary
if the Court maintains the current briefing schedule.” Id. at 2. Following the joint status report,
the Court entered an order maintaining the “current briefing schedule” after the government
argued the current schedule mitigated any need for a hearing on plaintiffs’ preliminary injunction
motions. Order, ECF No. 74. AMK9 notes in response to the government’s motion to strike,
“the government opposed plaintiffs’ request for a voluntary stay that would have accommodated
the government’s current desire for more time.” AMK9 Resp. at 7. AMK9 then reiterates, “[a]s
has always been the case, if the government agrees to stay performance, AKM9 is open to
agreeing to a time extension.”3 Id. at 8.
The Court has noted the current MJAR briefing schedule is expedited to “accommodate
plaintiffs’ requests for an expedited decision on the merits” and plaintiffs’ past efforts to timely
file their MJARs have been “impaired . . . by the government’s delay in filing a complete
administrative record.” Order, ECF No. 74 at 2. The only specific additional evidence the
government provides as an example of what it seeks to add to the administrative record justifying
an additional two weeks of briefing is an email with a time stamp allegedly showing the
submission of defendant-intervenor’s bid before the deadline. Mot. to Strike at 2–4. The
government subsequently attached this email to its reply in support of its motion to strike,
suggesting it has already located the evidence it argues must be added to the administrative
record. See Gov. Reply, Att. A, ECF No. 91-1 (a copy of the email referenced in the
government’s motion to strike).
The government does not provide any specific additional examples of the types of
documents it would seek an additional two weeks to locate beyond “any other documents or
other communications relating to the specific question and answer from bidders . . . that would
pertain to [plaintiffs’] new allegations.” Mot. to Strike at 4. The Federal Circuit cautioned in
3
The government does not address in its reply AMK9’s renewed invitation to stay performance. See generally Gov.
Reply.
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Axiom Resource Management, “supplementation of the record should be limited to cases in
which ‘the omission of extra-record evidence precludes effective judicial review.” Axiom
Resource Management, Inc. v. U.S., 564 F.3d 1374, 1380 (Fed. Cir. 2009) (quoting Murakami v.
U.S., 46 Fed. Cl. 731, 735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)). The government has
not shown how either the alleged timing or font issues would require significant documentary
additions to the administrative record. Without additional detail regarding the type of documents
the government seeks to supplement the record with, the Court is not in a position to determine
whether to allow the government to supplement the record, let alone to determine whether the
government has demonstrated prejudice if it is not allowed an additional two weeks to bring
together the documents. As AMK9 notes, the administrative record “does not consist of
documents the government needs to respond to AMK9’s allegations,” but rather “the
administrative record consists of the contemporaneous documents USPS considered and relied
upon in making its award decision.” AMK9 Resp. at 6; see also Kerr Contractors, Inc. v. U.S.,
89 Fed. Cl. 312, 335 (2009), aff’d, 374 F. App’x 979 (Fed. Cir. 2010) (“An effective APA
review . . . requires a record which contains the information relied upon by the agency as it made
its decision, as well as documentation of the agency’s decision-making process.”).
The Supreme Court has identified “the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). It has already been a
week since the government first filed its motion, giving USPS and government counsel adequate
time to consider any additional documents the government will seek to add to the administrative
record. The Court will not extend the expedited briefing schedule—crafted in response to a
refusal on the part of USPS to voluntarily stay the contract—to allow the government an
additional two weeks to contemplate filing a fourth supplementation to the administrative record
that may or may not include additional undefined documents related to plaintiffs’ claims. Id.Instead, the Court maintains the briefing schedule detailed in its 14 May 2021 Order setting the
deadline for the government and MSA to file their cross-motions for judgment on the
administrative record as 1 June 2021. See Order, ECF No. 80. The Court is amenable, however,
to a request by the government to reopen the administrative record to include any additional
documents the government believes relate to plaintiffs’ claims, as long as a supplement does not
affect the briefing schedule and is filed on or before 2 June 2021—three days before plaintiffs’
replies in support of their motions for judgment on the administrative record and responses to the
government and MSA’s cross-motions on the administrative record.
V. Conclusion
For the foregoing reasons, the government’s motion to strike GK9’s amended complaint
and to strike AMK9 and GK9’s motions for judgment on the administrative record is DENIED.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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