Sergent's Mechanical Systems, Inc. v. United States ( 2021 )

In the United States Court of Federal Claims
No. 21-1685C
(Filed: November 29, 2021)
)
SERGENT’S MECHANICAL )
SYSTEMS, INC. d/b/a SERGENT )
CONSTRUCTION, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES,
)
Defendant. )
)
Joel L. Hamner, Whitcomb, Selinsky, P.C., Denver, CO, for Plaintiff. With him on the
briefs was Jonathan Perrone.
Michael D. Snyder, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Defendant. With him on the briefs were
Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey,
Jr., Acting Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C.
ORDER
SOLOMSON, Judge.
The issue before the Court is straightforward: whether the United States Court
of Federal Claims can grant preliminary injunctive relief where Plaintiff asserts only a
Contract Disputes Act (“CDA”)1 claim pursuant to 28 U.S.C. § 1491(a). The Court once
again answers that question in the negative — and it is not a close call.
I. PROCEDURAL BACKGROUND
On August 12, 2021, Plaintiff, Sergent’s Mechanical Systems, Inc., d/b/a Sergent
Construction (“SMSI”), filed a Complaint against Defendant, the United States, acting
1 Pub. L. No. 95-563, 92 Stat. 2383 (1978) (codified at 41 U.S.C. §§ 7101–7109).
1
by and through the United States Department of Veterans Affairs (“VA”). ECF No. 1
(“Compl.”). SMSI alleged that the VA improperly terminated SMSI’s contract for
default. Id. ¶ 1, 2. The now-terminated contract was for “resolv[ing] certain heating,
ventilation, and air conditioning (‘HVAC’) issues” at a VA center in Florida. Id. ¶ 15.
The Complaint also alleged, inter alia, that the VA improperly failed to provide
declaratory relief, changed the contract, and refused to pay SMSI “for work completed
under the contract.” Id. ¶ 1. The Complaint cited the Tucker Act, 28 U.S.C. § 1491, as
amended by the CDA, as the basis for the Court’s jurisdiction. Id. ¶ 12. SMSI filed an
Amended Complaint on August 24, 2021, reiterating the same claims and the same
jurisdictional basis for them (and reflecting apparently only minor corrections). ECF
No. 12 (“Am. Compl.”). The Amended Complaint seeks primarily money damages, as
well as declaratory relief unrelated to SMSI’s request for preliminary equitable relief.
Id. at 19.
On the same day that SMSI filed its initial Complaint, SMSI filed a motion for a
temporary restraining order and preliminary injunction. ECF No. 5 (“TRO-PI Motion”).
SMSI requested that this Court enjoin the VA from: (1) “[e]xecuting a completion
contract for any remaining” work under the terminated contract; (2) “authorizing the
performance of any work” under any completion contract that “has already been
executed”; and (3) “[n]oticing other federal procuring agencies, contracting officers, or
other government officials of the contested termination for default . . . via the
government’s various evaluation reporting tools[.]” Id. at 1–2. Although SMSI sought
such preliminary relief pursuant to 28 U.S.C. § 1491(b)(2), ECF No. 6 at 18, neither
SMSI’s initial Complaint nor its Amended Complaint mention 28 U.S.C. § 1491(b). See
Compl.; Am. Compl.; TRO-PI Motion at 2 (“Concurrent with this motion, Sergent has
filed a Complaint under [the] Contract Disputes Act of 1978[.]”).2
On August 16, 2021, the Court held a status conference to discuss the TRO-PI
Motion. ECF No. 10; ECF No. 15 (“Tr.”). During that status conference, SMSI’s counsel
conceded: (1) SMSI’s Complaint was limited to a CDA claim; (2) the TRO-PI Motion
relied upon § 1491(b), but not § 1491(a); and (3) the TRO-PI Motion should have cited, but
did not address, 28 U.S.C. § 1491(a).3
2Section 1491(b) of Title 28 of the United States Code provides an “interested party” with a
cause of action to challenge an agency’s procurement-related decisions, commonly referred to
as “bid protests.” Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 95–99 (2020) (discussing
actions pursuant to 28 U.S.C. § 1491(b)).
3 See Tr. at 7:16–22 (“THE COURT: But you do agree that there is no 1491(b) claim here at all,
correct? [PLAINTIFF]: Related to bids, Your Honor, no. THE COURT: Well, related to a
procurement action. This is a pure CDA claim in your Complaint. Correct? [PLAINTIFF]: Yes,
Your Honor.”); Tr. at 4:20—5:3 (“THE COURT: But your [TRO-PI] Motion only cites 1491(b). Is
it your contention that I have injunctive relief authority under 1491(a)? [PLAINTIFF]: Yes, sir.
Yes, Your Honor. THE COURT: So where is any citation to 1491(a) in your motion?
2
Following the status conference, the Court, on August 19, 2021, denied SMSI’s
TRO-PI Motion because “the plain language of § 1491(a)(2) does not authorize this
Court to issue injunctive relief in [monetary] CDA cases, and particularly not
preliminary injunctive relief.” Sergent’s Mech. Sys., Inc. v. United States, -- Fed. Cl. --,
2021 WL 3672176, at *2 (Fed. Cl. Aug. 19, 2021).
On August 27, 2021, SMSI filed a motion requesting that this Court certify its
denial of SMSI’s TRO-PI Motion for an interlocutory appeal to the United States Court
of Appeals for the Federal Circuit, our appellate court. ECF No. 13-1, Plaintiff’s
Memorandum in Support of Its Motion to Certify (“Pl. Mem.”). The government filed
its response on September 10, 2021, arguing that SMSI’s motion to certify was
“improper and unsupported by any source of relevant law.” ECF No. 16 at 1. In
particular, the government pointed out that SMSI could have pursued an immediate
interlocutory appeal because this Court’s order denied a request for injunctive relief. Id.
at 2–3 & n.2 (citing 28 U.S.C. § 1292(a)(1), (c)(1), and Cont’l Serv. Grp., Inc. v. United
States, 2017 WL 4926842, at *6 (Fed. Cl. Oct. 31, 2017)).
The Court agreed with the government; the law is clear that SMSI’s motion for
certification was unnecessary. ECF No. 17. Nevertheless, the Court exercised its
discretion to treat SMSI’s motion as one for reconsideration of this Court’s prior denial
of SMSI’s TRO-PI Motion, pursuant to Rule 54(b) of the Rules of the United States Court
of Federal Claims (“RCFC”). Id. (citing E&I Glob. Energy Servs., Inc. v. United States, 152
Fed. Cl. 524, 530–33 (2021)). This tolled the 60-day appeal deadline. ECF No. 17 (citing
O’Connor v. United States, 392 F. App’x 861, 862 (Fed. Cir. 2010) (per curiam)). The
Court ordered the government to respond to the merits of SMSI’s arguments regarding
preliminary injunctive relief, ECF No. 17, and the government accordingly filed its
response on September 28, 2021, ECF No. 18 (“Def. Resp.”). Plaintiff filed a reply on
October 13, 2021. ECF No. 20 (“Pl. Reply”). Plaintiff’s motion for reconsideration is
now fully briefed.
II. STANDARD OF REVIEW
Pursuant to RCFC 54(b), this Court has considerable discretion to revisit any
decision “that adjudicates fewer than all the claims” at issue, as long as it does so
“before the entry of a judgment adjudicating all the claims.” Because this Court has not
yet entered a judgment in this case, the Court elects to reconsider its decision to deny
SMSI’s TRO-PI Motion. See E&I Global Energy Servs., 152 Fed. Cl. at 531–32
(summarizing precedent and concluding that “the Court’s discretion under the law of
the case doctrine, and RCFC 54(b), is vast” and that “the court has the power to
[PLAINTIFF]: Your Honor, if (a) is not cited in the motion, then that would have been an
oversight as to the letter of that particular citation.”).
3
reconsider its decisions until a judgment is entered” (quoting Exxon Corp. v. United States,
931 F.2d 874, 877 (Fed. Cir. 1991))).
III. THE COURT DENIES SMSI’S MOTION FOR RECONSIDERATION AND
ONCE AGAIN REJECTS SMSI’S REQUEST FOR A TEMPOARY
RESTRAINING ORDER OR PRELIMINARY INJUNCTION
The United States Court of Federal Claims does not have general authority to
issue injunctive relief. See, e.g., Richardson v. Morris, 409 U.S. 464, 465 (1973) (“[T]he
[Tucker] Act has long been construed as authorizing only actions for money judgments
and not suits for equitable relief against the United States.”); Bowen v. Massachusetts, 487
U.S. 879, 905 (1988) (“The Claims Court does not have the general equitable powers of a
district court to grant prospective relief. Indeed, we have stated categorically that ‘the
Court of Claims has no power to grant equitable relief.’” (quoting Richardson, 409 U.S. at
465)); United States v. Tohono O’Odham Nation, 563 U.S. 307, 313 (2011) (“Unlike the
district courts, however, the [Court of Federal Claims] has no general power to provide
equitable relief against the Government or its officers.”); Maine Cmty. Health Options v.
United States, 140 S. Ct. 1308, 1330 (2020) (noting that “the Court of Federal Claims ‘does
not have the general equitable powers of a district court to grant prospective relief’”
(quoting Bowen, 487 U.S. at 905)); Roth v. United States, 378 F.3d 1371 (Fed. Cir. 2004)
(“the Court of Federal Claims does not possess general equity jurisdiction”); Alvarado
Hosp., LLC v. Price, 868 F.3d 983, 999 (Fed. Cir. 2017) (“The Tucker Act does not
generally confer jurisdiction for actions seeking declaratory or injunctive relief.”).
Instead, and as explained in more detail below, the Court may award equitable
or other nonmonetary relief in Tucker Act cases in only three statutorily defined
circumstances: (1) in bid protest actions brought pursuant to 28 U.S.C. § 1491(b); (2) as
“incident of and collateral to” a monetary judgment, as set out in the first two sentences
of 28 U.S.C. § 1491(a)(2); and (3) for certain types of nonmonetary CDA claims, as
described in the last sentence of § 1491(a)(2).4 SMSI’s claims in its Amended Complaint
fit within none of those categories.
4See, e.g., Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998)
(“Although the Tucker Act has been amended to permit the Court of Federal Claims to grant
equitable relief ancillary to claims for monetary relief over which it has jurisdiction, see 28 U.S.C.
§§ 1491(a)(2), (b)(2), there is no provision giving the Court of Federal Claims jurisdiction to
grant equitable relief when it is unrelated to a claim for monetary relief pending before the
court.”); Synernet Corp. v. United States, 215 F.3d 1348 (Fed. Cir. 1999) (“Apart from exceptions
not applicable here, see 28 U.S.C. § 1491(a)(2), (b)(2), the Court of Federal Claims has no power
to grant equitable relief.”); Malcolm v. United States, 690 F. App’x 687, 689 (Fed. Cir. 2017) (per
curiam) (“The court cannot grant equitable relief unless such relief is ‘an incident of and
collateral to’ a money judgment.” (quoting 28 U.S.C. § 1491(a)(2))); Piotrowski v. United States,
722 F. App’x 982, 985 (Fed. Cir. 2018) (“[T]he Court of Federal Claims correctly held that it could
not provide equitable relief to correct [Plaintiff]’s military records because the requested relief
4
Indeed, aside from casting all the Tucker Act provisions together in a legal brew
to see whether an equitable relief golem might magically emerge, SMSI makes little
effort to demonstrate that the Court has the power to issue the preliminary injunction
SMSI seeks. SMSI “‘is the master of [its] complaint’ and [is] free to choose between legal
theories.” McNeil v. Cmty. Probation Servs., LLC, 945 F.3d 991, 996 (6th Cir. 2019)
(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987)). Having selected the
CDA route — and having failed to allege facts to support an action pursuant to 28
U.S.C. § 1491(b) — SMSI cannot obtain a preliminary injunction.
A. 28 U.S.C. § 1491(a) Does Not Provide This Court with Jurisdiction to
Grant Preliminary Injunctive Relief
The Court begins, as it must, with the Tucker Act’s plain text, as amended by the
CDA:
[1] To provide an entire remedy and to complete the relief
afforded by the judgment, the court may, as an incident of and
collateral to any such judgment, issue orders directing
restoration to office or position, placement in appropriate
duty or retirement status, and correction of applicable
records, and such orders may be issued to any appropriate
official of the United States. [2] In any case within its
jurisdiction, the court shall have the power to remand
appropriate matters to any administrative or executive body
or official with such direction as it may deem proper and just.
[3] The Court of Federal Claims shall have jurisdiction to
render judgment upon any claim by or against, or dispute
with, a contractor arising under section 7104(b)(1) of title 41,
including a dispute concerning termination of a contract,
rights in tangible or intangible property, compliance with cost
accounting standards, and other nonmonetary disputes on
which a decision of the contracting officer has been issued
under section 6 of that Act.
28 U.S.C. § 1491(a)(2).
The above-quoted, plain language of 28 U.S.C. § 1491(a)(2) demonstrates that this
Court lacks broad jurisdiction to issue equitable relief. Instead, § 1491(a) permits the
Court to issue only the following specific orders: (1) orders “directing restoration to
was not tied to a money judgment.”); Langan v. United States, 812 F. App’x 982, 987 (Fed. Cir.
2020) (per curiam) (“The Claims Court lacks general equity jurisdiction and can only award
equitable relief ‘incident of and collateral to’ a money judgment.” (quoting 28 U.S.C.
§ 1491(a)(2))).
5
office or position”; (2) orders directing “placement in appropriate duty or retirement
status”; (3) orders directing the “correction of applicable records”; and (4) orders to
“remand appropriate matters to any administrative or executive body or official with
such direction as the Court may deem proper and just.” 28 U.S.C. § 1491(a)(2).
Moreover, such relief may be ordered only “to complete the relief afforded by the
[money] judgment” and “as an incident of and collateral to any such [money]
judgment.” Id. In other words, § 1491(a)(2) nowhere grants the Court the power to
issue a preliminary injunction — both because such relief is not in the short list of
allowable equitable relief, and because a preliminary injunction, by definition, cannot
be “incident of and collateral to” a final money judgment. Id.5
In keeping with the statute’s plain language, the Federal Circuit has interpreted
28 U.S.C. § 1491(a) to preclude this Court from granting injunctive relief outside of the
circumstances defined in the statute. See, e.g., Kanemoto v. Reno, 41 F.3d 641, 644–45
(Fed. Cir. 1994) (“The remedies available in [the Court of Federal Claims] extend only to
those affording monetary relief; the court cannot entertain claims for injunctive relief or
specific performance, except in narrowly defined, statutorily provided
circumstances[.]”), quoted in Columbus Reg’l Hosp. v. United States, 990 F.3d 1330, 1354
(Fed. Cir. 2021); see also Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep’t of Homeland
Sec., 490 F.3d 940, 943 (Fed Cir. 2007) (“In order for a claim to be brought under either
the Tucker Act or the Little Tucker Act, the claim must be for monetary relief; it cannot
be for equitable relief, except in very limited circumstances not at issue here.”); Cooper v.
United States, 860 F. App’x 742, 744 (Fed. Cir. 2021) (per curiam) (“the Court of Federal
Claims cannot entertain claims for injunctive relief, except in narrowly defined
circumstances”).
The Federal Circuit also has repeatedly emphasized that any equitable relief
pursuant to § 1491(a)(2) must be tied to, and in support of, a money judgment, further
precluding preliminary injunctive relief in this case. See, e.g., James v. Caldera, 159 F.3d
573, 580 (Fed. Cir. 1998) (“It is true that limited equitable relief sometimes is available in
Tucker Act suits. However, that equitable relief must be ‘an incident of and collateral
to’ a money judgment.” (quoting 28 U.S.C. § 1492(a)(2))). In James, the Federal Circuit
summarized the statute’s requirement succinctly: “Stated another way, the Court of
Federal Claims has no power ‘to grant affirmative nonmonetary relief unless it is tied
and subordinate to a money judgment.’” Id. (quoting Austin v. United States, 206 Ct. Cl.
5The limiting language of 28 U.S.C. § 1491(a)(2) stands in stark contrast to that of 28 U.S.C.
§ 1491(b)(2), which provides the Court with broad injunctive relief power, albeit with respect to
a narrower class of actions defined in § 1491(b). 28 U.S.C. § 1491(b)(2) (providing that “the
court[] may award any relief that the court considers proper, including declaratory and injunctive relief
except that any monetary relief shall be limited to bid preparation and proposal costs”
(emphasis added)). The type of relief the Court may order thus varies depending on whether
an action is brought pursuant to 28 U.S.C. § 1491(a) or § 1491(b).
6
719, 723 (1975)), cited in Shelden v. United States, 742 F. App’x 496, 502 (Fed. Cir. 2018)
(per curiam); see also Bobula v. Dep’t of Justice, 970 F.3d 854, 859 (Fed. Cir. 1992) (“While
limited equitable relief is sometimes available in Tucker Act suits, the equitable relief
must be incidental to and collateral to a claim for money damages.”).
The Court of Federal Claims, of course, has faithfully followed the Federal
Circuit’s instructions. See, e.g., Rodgers v. United States, 153 Fed. Cl. 538, 543 (2021)
(denying plaintiff’s various requests for equitable relief because “[t]his Court’s ability to
grant equitable relief under the Tucker Act is limited” and “[t]he equitable relief
Plaintiff requests is plainly not incidental of and collateral to money damages”);
Meidinger v. United States, 146 Fed. Cl. 491, 494 (2020) (“Furthermore, this court lacks
jurisdiction over actions seeking equitable relief, such as a declaratory or injunctive
remedy, that are not brought pursuant to the specific grants of authority to this court to
issue such relief.”); Looks Great Servs., Inc. v. United States, 145 Fed. Cl. 324, 3228 (2019)
(“in cases not involving bid protests the Court of Federal Claims may only grant
equitable relief when ‘it is tied and subordinate to a money judgment’” (quoting
Stephanatos v. United States, 81 Fed. Cl. 440, 445 (2008), aff’d, 306 F. App’x 560 (Fed. Cir.
2009))); Casiano v. United States, 141 Fed. Cl. 528, 541 (2019) (denying plaintiffs “the kind
of broad equitable relief requested in their complaint — i.e., an order ‘enjoin[ing] the
[United States Public Health Service] from its unlawful practices described in th[e]
complaint’” because “[t]his Court has limited authority to order injunctive relief”);
Porter v. United States, 131 Fed. Cl. 552, 560 (2017) (holding that the Court of Federal
Claims’ “power to order the correction of a service member’s military records depends
on the correction being ‘incidental’ to an award of monetary relief, usually in the form
of increased payments” (first citing Pearl v. United States, 111 Fed. Cl. 301, 308 (2013);
and then citing Haskins v. United States, 51 Fed. Cl. 818, 822 (2002)); Teztlaff v. United
States, 2015 WL 7585333, at *11 (Fed. Cl. Nov. 25, 2015) (“The Court of Federal Claims
cannot entertain claims for injunctive relief, except in four statutorily defined
circumstances. . . . None of those circumstances applies here. . . . Because plaintiff’s
request does not fall into one of these exceptions, her motion is denied.” (citations
omitted)); Laughlin v. United States, 124 Fed. Cl. 374, 382 (2015) (“Under the Tucker Act,
the court has authority to award equitable relief in the form of a declaratory judgment
‘only when such an award would be ancillary to an affirmative obligation of the federal
government to pay money damages.’” (quoting Anderson v. United States, 59 Fed. Cl.
451, 456 (2004))).
Finally, the third sentence of 28 U.S.C. § 1491(a)(2) provides this Court with
jurisdiction to award some types of nonmonetary relief — but not preliminary
injunctions — where a proper nonmonetary CDA claim forms the basis of a plaintiff’s
complaint:
The Court of Federal Claims shall have jurisdiction to render
judgment upon any claim by or against, or dispute with, a
contractor arising under section 7104(b)(1) of title 41, including
7
a dispute concerning termination of a contract, rights in
tangible or intangible property, compliance with cost
accounting standards, and other nonmonetary disputes on which
a decision of the contracting officer has been issued under section
6 of that Act.
28 U.S.C. § 1491(a)(2) (emphasis added). Nothing in this third sentence of 28 U.S.C.
§ 1491(a)(2), however, expressly permits the Court to issue preliminary nonmonetary
relief. To the contrary, it provides the Court with jurisdiction only to render
“judgment” upon “any claim” that has been presented to a contracting officer. Id.; 41
U.S.C. § 7103(a)(1) (“Each claim by a contractor against the Federal Government relating
to a contract shall be submitted to the contracting officer for a decision.”).
Nor does the definition of “claim” under the CDA include preliminary
injunctions. While the CDA itself does not define “claim,” the Federal Circuit has held
“that the definition of the term ‘claim’ in the [the Federal Acquisition Regulation
(“FAR”)] governs.” Todd Const., L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011)
(citing H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564–65 (Fed. Cir. 1995)). The FAR, in
turn, defines “claim” as “a written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the payment of money in a sum certain,
the adjustment or interpretation of contract terms, or other relief arising under or
relating to this contract.” FAR 52.233-1(c); see also FAR. 2.101 (defining “claim”). This
Court has recognized that preliminary injunctions do not fit within the FAR’s definition
of a proper CDA claim. See, e.g., CanPro Invs. Ltd. v. United States, 120 Fed. Cl. 17, 23
(2015) (“[T]he CDA does not provide for interim injunctive relief while a claim is
pending.”); Davis Grp., Inc. v. United States, 2012 WL 2686053 at *1, *3 (Fed. Cl. July 6,
2012) (denying plaintiff’s “preliminary injunction in conjunction with [CDA] claims”
absent “express statutory authority for the Court of Federal Claims to issue injunctions
in this circumstance”).6
The law as summarized above is well-settled. See, e.g., Vernon J. Edwards,
Postscript I: Breach of Loss of the Fair Opportunity to Compete, 20 No. 12 Nash & Cibinic
Rep. ¶ 59 (2006) (“[U]nder the CDA, a board or court cannot . . . issue a temporary
restraining order, or provide injunctive relief.”), quoted in Vanquish Worldwide, LLC v.
6 Cf. Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir. 1999) (“The discretion
to grant [final] declaratory relief only in limited circumstances allows the court or board to
restrict the occasions for intervention during contract performance to those involving a
fundamental question of contract interpretation or a special need for early resolution of a legal
issue.”). In Alliant, 178 F.3d at 1263, the Federal Circuit addressed the availability of declaratory
relief as part of a final judgment on a proper nonmonetary claim. Moreover, in that case, the
contractor sought declaratory relief with respect to its own contract with the government, id.,but did not seek equitable relief with respect to a procurement or another party’s contract with
the government; Alliant did not involve a § 1491(b) action.
8
United States, 147 Fed. Cl. 390, 398 (2020); Digital Techs., Inc. v. United States, 89 Fed. Cl.
711, 728 (2009); BLR Grp. of Am., Inc. v. United States, 84 Fed. Cl. 634, 647 (2008)); Ralph
C. Nash & John Cibinic, Postscript: Nonmonetary Claims, 19 No. 8 Nash & Cibinic Rep. ¶
38 (2005) (explaining that “neither the court nor the boards have the power to grant
injunctive relief” in CDA cases).7
In sum, the statute’s plain language and binding Federal Circuit precedent — as
well as this Court’s decisions — all make clear that we cannot award preliminary
injunctive relief in cases brought pursuant to § 1491(a), and particularly not in CDA
cases.
B. SMSI Cannot Circumvent 28 U.S.C. § 1491(a)(2) to Obtain Preliminary
Injunctive Relief
Despite the clarity of 28 U.S.C. § 1491(a)(2) and binding precedent interpreting
that statutory provision, SMSI asserts that this Court has the power to grant SMSI
preliminary injunctive relief. The Court rejects SMSI’s arguments.
First, SMSI asserts that 28 U.S.C. § 1491(a)(2) “authorizes the Court to ‘provide an
entire remedy’ to a party and ‘complete the relief afforded’ by any judgment this Court
may issue.” Pl. Mem. at 5 (quoting § 1491(a)(2)); see also Pl. Reply at 5. SMSI misreads
the statute. The phrases “entire remedy” and “complete the relief” simply describe the
purposes for which the Court can grant the specific types of relief the statute identifies in
the list that follows (e.g., the correction of records, remand to administrative agency).
Preliminary injunctions are not included in that list. See, e.g., Teztlaff, 2015 WL 7585333,
at *11; Cooper, 860 F. App’x at 744.
Second, SMSI argues that “a final judgment need not precede any other ‘remedy’ or
‘relief’” because § 1491(a)(2) “places no temporal restraints on . . . the relief this Court is
empowered to afford.” Pl. Mem. at 5 (quoting 28 U.S.C. § 1491(a)(2)). The statute’s
7 The Court also notes that the boards of contract appeals take the same view of the CDA. See,
e.g., Heroes Hire LLC v. Dep’t of Veterans Affs., CBCA 7195, ¶ 37,940 (Oct. 7, 2021) (holding that
the United States Civilian Board of Contract Appeals (“CBCA”) “lack[s] th[e] type of injunctive
power” to “direct the VA to forward invoices” to a disbursement office and pay the contractor
directly because “[t]he CDA does not allow [the CBCA] to grant injunctive relief”); Tiya Support
Servs., ASBCA No. 62648, 21-1 B.C.A. ¶ 37901 n.3 (July 22, 2021) (“The Board has long held that
it does not have jurisdiction to entertain injunctive relief.”); Kostas Greek Food – Zorbas, ASBCA
No. 62213, 21-1 B.C.A. ¶ 37750 (Nov. 23, 2020) (“To the extent Kostas’ notice of appeal and
complaint can be read to seek injunctive relief or specific performance, such requests are
beyond the jurisdiction of the Board.”); Puma Energy Honduras, S.A. De C.V., ASBCA No. 61966,
20-1 B.C.A. ¶ 37507 (Jan. 14, 2020) (holding that the Board had no jurisdiction to decide requests
for injunctive relief); Applied Ordnance Tech., Inc., ASBCA No. 51297, ASBCA No. 51543, 98-2
B.C.A. ¶ 30,023 (Sept. 17, 1998) (“the Board lacks jurisdiction over suits seeking injunctive relief,
or specific performance”).
9
plain language, however, precludes SMSI’s reading, as the statute provides the Court
with authority to issue the specific relief mentioned “to complete the relief afforded by
the judgment.” 28 U.S.C. § 1491(a)(2) (emphasis added). Merriam-Webster defines the
verb form of “complete” as “to bring to an end and especially into a perfected state.”
Complete, Merriam-Webster, https://www.merriam-webster.com/dictionary/complete
(last visited Nov. 22, 2021) (emphasis added). Even without resorting to any dictionary
definitions, however, the Court finds it obvious that there first must be a judgment, in
order for any other relief to be “incident of and collateral to” it. 28 U.S.C. § 1491(a)(2).
SMSI’s assertion that the statute “places no temporal restraints” on the relief this Court
can provide contradicts the statute’s plain language.
Federal Circuit precedent also precludes SMSI’s interpretation of § 1491(a). See
James, 159 F.3d at 580 (“the Court of Federal claims has no power ‘to grant affirmative
nonmonetary relief unless it is tied and subordinate to a money judgment’” (quoting
Austin, 206 Ct. Cl. at 723)). SMSI argues that a preliminary injunction would meet the
James standard because it is issued only after the Court evaluates the likelihood of
success on the merits. Pl. Reply at 6–7. According to SMSI, a preliminary injunction is
“subordinate to” a judgment because the latter can undo the preliminary relief. Id.
Here, as elsewhere, SMSI ignores the rest of the statute — SMSI fails, for example, to
address the phrase “complete the relief.” 28 U.S.C. § 1491(a)(2). SMSI also ignores the
Federal Circuit’s instruction that any nonmonetary relief be “tied . . . to a money
judgment.” James, 159 F.3d at 580 (quoting Austin, 206 Ct. Cl. at 723).
To support SMSI’s theory that 28 U.S.C. § 1491(a)(2) permits this Court to grant
preliminary injunctive relief in a CDA case, SMSI misapplies a single line from a 76-
year-old decision of the United States Supreme Court. Pl. Mem. at 6 (discussing De
Beers Consolidated Mines v. United States, 325 U.S. 212, 220 (1945)). SMSI is correct that, in
De Beers, the Supreme Court noted that “[a] preliminary injunction is always
appropriate to grant intermediate relief of the same character as that which may be
granted finally.” 325 U.S. at 220. But, even assuming the nonmonetary relief specified
in 28 U.S.C. § 1491(a)(2) may be characterized as injunctive relief, the line SMSI quotes
from De Beers does not help SMSI for the simple reason that its Amended Complaint
does not seek permanent injunctive relief.
As a general matter, plaintiffs seek preliminary injunctions to preserve the status
quo so that if they ultimately achieve success on the merits, they remain well-positioned
to secure permanent injunctive relief. See, e.g., Continental Serv. Grp., Inc. v. United
States, 722 F. App’x 986, 994 (Fed. Cir. 2018) (“The function of preliminary injunctive
relief is to preserve the status quo pending a determination of the action on the merits.”
(quoting Litton Sys., Inc. v. Sundstrand Corp., 750 F.2d 952, 961 (Fed. Cir. 1984))).8 Thus,
8See also PGBA v. United States, 389 F.3d 1219, 1229, 1232 (Fed. Cir. 2004) (affirming denial of
injunctive relief where the trial court “considered [plaintiff’s] failure to seek a preliminary
injunction as a factor weighing against a grant of injunctive relief”); Aero Spray v. United States,
10
preliminary injunction motions must seek “intermediate relief of the same character as
that which may be granted finally.” De Beers, 325 U.S. at 220 (emphasis added); see also
Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (“A district court should not issue
an injunction when the injunction in question is not of the same character, and deals
with a matter lying wholly outside the issues in the suit.”), cited in Bruce v. Reese, 431 F.
App’x 805, 806 n.1 (11th Cir. 2011) (per curiam), Jones v. Sec. of Pa. Dep’t of Corrs., 589 F.
App’x 591, 594 (3d Cir. 2014) (per curiam), Pac. Radiation Oncology, LLC v. Queen’s Med.
Ctr., 810 F.3d 631, 636 (9th Cir. 2015); 11A Wright & Miller, Federal Practice &
Procedure, § 2947, Purpose and Scope of Preliminary Injunctions (3d ed.) (“Conversely,
a preliminary injunction may not issue when it is not of the same character as that
which may be granted finally and when it deals with matter outside the issues in the
underlying suit.”).
In other words, a motion for preliminary injunctive relief must “seek[] to enjoin
the action that the complaint alleges is unlawful.” Bird v. Barr, 2020 WL 4219784, at *2
(D.D.C. July 23, 2020) (emphasis in original). SMSI’s Amended Complaint does not
request permanent injunctive relief. See Am. Compl. at 19. Instead, SMSI seeks relief
that is characteristic of a CDA claim — that the Court: (1) convert the termination for
default to a termination for convenience; (2) award termination costs or unpaid
performance costs to SMSI; (3) award damages to SMSI; and (4) award SMSI attorneys’
fees and costs. Id. None of this requested relief has anything to do with the temporary
restraining order or preliminary injunction SMSI seeks at this stage of the case.9
The government correctly notes yet another flaw with SMSI’s reliance on De
Beers. In that case, “the Supreme Court reversed an order granting an injunction because
it was ‘not authorized either by statute [the Sherman and Wilson Acts] or by the usages
of equity.’” Def. Resp. at 8 (emphasis added) (quoting De Beers, 325 U.S. at 223). The
same reasoning applies here — nothing in 28 U.S.C. § 1491(a)(2) allows this Court to
grant a preliminary injunction. Here, as in De Beers, the injunction sought is “not
authorized . . . by statute.” De Beers, 325 U.S. at 223.
Third, SMSI asserts that the Court of Federal Claims can grant preliminary
injunctive relief in this case because the Federal Circuit “has described this Court’s
jurisdiction under 28 U.S.C. § 1491(a) as ‘comprehensive’ and ‘broad.’” Pl. Mem. at 6
(citing Todd Const., 656 F.3d at 1311). SMSI’s invocation of that case does not help its
-- Fed. Cl. --, 2021 WL 5023371, at *25 (Oct. 28, 2021) (noting that “plaintiff did not seek a
preliminary injunction or secure an agreed-upon stay of the challenged contract awards,
suggesting a lack of irreparable harm” (citing PGBA, 389 F.3d at 1229, 1232)).
9 Nor does SMSI’s request for “a declaratory judgment that the VA did not comply with
applicable OSHA regulations,” Am. Compl. at 19, have any connection with the preliminary
injunction SMSI seeks, even assuming the Court has jurisdiction to issue such a declaratory
judgment (should SMSI succeed on the merits of its CDA claim).
11
own. The Federal Circuit in Todd Construction used the words “comprehensive” and
“broad” to describe what qualifies as a proper CDA claim, not the type of relief available
under the CDA. See 656 F.3d at 1311 (explaining that “Congress’ overall purpose to
confer comprehensive jurisdiction under the CDA confirms that we should read the
definition of ‘claim’ broadly” and finding that “the broad language of the statute and
FAR provision supports a broad reading of the term ‘claim.’”).
While SMSI asserts that no Supreme Court or Federal Circuit decision addresses
whether this Court can grant preliminary injunctive relief pursuant to 28 U.S.C.
§ 1491(a)(2), this is not “an open question of law,” as SMSI asserts. Pl. Mem. at 6–7. For
starters, SMSI simply ignores the Federal Circuit cases holding that § 1491(a)(2) restricts
the relief available under that statutory subsection to the types of relief expressly listed
therein. See, e.g., Kanemoto, 41 F.3d at 644–45 (“The remedies available at [the Court of
Federal Claims] extend only to those affording monetary relief; the court cannot
entertain claims for injunctive relief or specific performance, except in narrowly
defined, statutorily provided circumstances[.]”), quoted in Columbus Regional Hosp., 990
F.3d at 1354; Teztlaff, 2015 WL 7585333, at *11 (“The Court of Federal Claims cannot
entertain claims for injunctive relief, except in four statutorily defined
circumstances. . . . None of those circumstances applies here. . . . Because plaintiff’s
request does not fall into one of these exceptions, her motion is denied.” (citations
omitted)).
SMSI further asserts that “[t]his issue has come before the Appeals Court at least
twice in the past ten years — both times, the Appeals Court has declined to address it,
resolving those cases on other grounds.” Pl. Mem. at 7 (citing Todd Const., 656 F.3d at
1311 n.3,10 and CanPro Invs. Ltd. v. United States, 120 Fed. Cl. 17, 22 (2015)).
Preliminarily, the Court notes that CanPro Investments is a decision of this Court,
and not of the Federal Circuit. SMSI thus relies upon, at most, a single Federal Circuit
decision, but that case — Todd Construction — also does not help SMSI. In Todd
Construction, the Federal Circuit declined to address a very specific question: “whether
an injunction was available pursuant to the [Court of Federal Claims’] ‘power to remand
appropriate matters to any administrative or executive body or official with such discretion as
it may deem proper and just.’” 656 F.3d at 1311 n.3 (emphasis added) (quoting 28
U.S.C. § 1491(a)(2)). SMSI, however, never attempts to explain how the preliminary
injunction it seeks might fall under this Court’s remand authority pursuant to
§ 1491(a)(2).
The facts of Todd Construction further undermine SMSI’s position. In Todd
Construction, the plaintiff’s complaint involved a challenge to the government’s
performance evaluation, making the entire nature of the plaintiff’s CDA claim
SMSI appears to cite the incorrect page number and footnote in Todd Construction. The
10
Court’s citations correct the apparent error.
12
nonmonetary. See 656 F.3d at 1309 (“Todd filed a complaint in the [Court of Federal
Claims] . . . seeking, inter alia, a declaratory judgment.”). In contrast, SMSI’s CDA claim
seeks primarily monetary relief. See Am. Compl. at 19 (requesting that the Court
“[c]onvert the VA’s termination . . . for default to a termination for Defendant’s
convenience,” “[a]ward [SMSI] termination costs . . . of $719,003.39,” “award [SMSI]
$533,154.78 in unpaid performance costs,” and “[a]ward [SMSI] $142,884.95 in
damages.”).11
Nor, for that matter, is there any hint in Todd Construction that this Court may
utilize the remand authority in § 1491(a)(2) to issue a preliminary injunction. And even
if the Court were to assume, for the sake of argument, that the Federal Circuit in Todd
did decline to address the question of preliminary injunctive relief pursuant to
§ 1491(a)(2), SMSI fails to address, much less distinguish, the cases discussed supra that
limit the nonmonetary relief available under § 1491(a) to the types specifically identified
in that provision.
Furthermore, for a CDA claim to be properly before this Court, it must have been
submitted to the contracting officer for a decision. See 41 U.S.C. § 7103(a)(1) (“Each
claim by a contractor against the Federal Government relating to a contract shall be
submitted to the contracting officer for a decision.”). The Court has reviewed the claim
SMSI submitted to the contracting officer. See ECF No. 7-4. That claim requests relief
related only to SMSI’s now-terminated contract with the VA, and not the alleged
replacement contract. See id. at 2 (requesting “[c]onversion of the termination for
default . . . to a termination for convenience,” “$719,003.39 in associated termination
costs,” “$142,884.95 for payments due,” and “[a] formal declaration” related to alleged
violations of OSHA regulations related to asbestos removal). SMSI’s request for relief
related to the replacement contract thus is not part of its CDA claim here, even
assuming for the sake of argument that it could be the subject of a proper CDA claim.12
Finally, SMSI appears to have submitted a CDA claim with the required “sum
certain” — a classic monetary CDA claim. See, e.g., M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1329 (Fed. Cir. 2010) (holding that plaintiff’s letter to
11As noted above, the Amended Complaint also requests that the Court “[i]ssue a declaratory
judgment that the VA did not comply with applicable OSHA regulations.” Am. Compl. at 19.
But even assuming that the Court has jurisdiction to issue such declaratory relief as part of a
final judgment, SMSI’s pending request for preliminary injunctive relief has no connection to
the declaratory judgment SMSI seeks.
12Although an “interested party” may challenge a government procurement action, 28 U.S.C.
§ 1491(b), a CDA claim may be filed only by a contractor with respect to its contract that
establishes privity with the government. United States v. Johnson Controls, Inc., 713 F.2d 1541,
1550 (Fed. Cir. 1983) (Tucker Act's jurisdictional “concept of privity is mirrored in the CDA”);
Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009); cf. Johnson Lasky Kindelin Architects,
Inc. v. United States, 151 Fed. Cl. 642, 660 (2020).
13
contracting officer was “not valid . . . under the CDA” because, inter alia, “it did not
state a sum certain”). But even if SMSI had submitted a CDA claim for nonmonetary
relief, the Court would lack jurisdiction over at least two of the three types of relief
requested in the TRO-PI Motion because such nonmonetary relief in this case would be
improper on the facts pled. See Securiforce Int’l Am., LLC v. United States, 879 F.3d 1354,
1362 (Fed. Cir. 2018) (“If ‘the only significant consequence’ of the declaratory relief
sought ‘would be that [the plaintiff] would obtain monetary damages from the
government,’ the claim is in essence a monetary one.” (quoting Brazos Elec. Power Coop.,
Inc. v. United States, 144 F.3d 784, 787 (Fed. Cir. 1998))).
In Securiforce, the plaintiff filed suit pursuant to the Tucker Act and the CDA,
seeking a declaration that its contract for fuel delivery, which the government
terminated in part for default, “was improperly terminated.” 879 F.3d at 1358. The
Federal Circuit held that granting equitable relief via a declaratory judgment “would
violate ‘the traditional rule that courts will not grant equitable relief when money
damages are adequate.’” Id. at 1362 (quoting Alliant, 178 F.3d at 1271)). Here, the
gravamen of SMSI’s Amended Complaint is a challenge to the government’s
termination for default; should SMSI succeed on the merits, SMSI’s remedy is a
conversion to a termination for convenience and associated money damages, but does
not include nonmonetary relief. See Securiforce, 879 F.3d at 1360 (“Securiforce’s claim
concerning the termination for convenience, although styled as one for declaratory
relief, would — if granted — yield only one significant consequence: it would entitle
Securiforce to recover money damages from the government.”); FAR 52.249-10(c) (“If,
after termination . . . it is determined that the Contractor was not in default, or that the
delay was excusable, the rights and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the Government.”); Bowman Const.
Co. v. United States, 154 Fed. Cl. 127, 141 (2021) (“The remedy for a successful challenge
to a termination for default is a conversion of the default termination to a termination
for the convenience of the government which carries with it a monetary remedy —
termination for convenience damages.”).
Accordingly, even if SMSI had submitted a CDA claim to the cognizant
contracting officer seeking nonmonetary relief— i.e., to prevent the government from
entering into a completion (or other follow-on) contract or authorizing work under one,
see TRO-PI Mot. at 1 — this Court would likely lack jurisdiction over such a CDA claim
in any event. Securiforce, 879 F.3d at 1361 (plaintiff cannot rely on CDA provisions
providing this Court with “jurisdiction over some nonmonetary disputes . . . where, as
here, the party is in essence seeking monetary relief”).13
13The Court acknowledges that, pursuant to Todd Construction, it is conceivable that a CDA
claim challenging a termination for default may seek nonmonetary relief to correct government
records regarding the nature of the termination and thereby limit the government from noticing
other agencies of a default if the Court finds it improper, see TRO-PI Motion at 1–2. In this case,
14
C. SMSI Cannot Invoke § 1491(b) in This CDA Case to Obtain Preliminary
Injunctive Relief
SMSI contends that § 1491(b) provides this Court jurisdiction to grant
preliminary injunctive relief. See Pl. Mem. at 7–12; Pl. Reply at 9–12. This argument
fails for several reasons.
At the outset, the Court readily acknowledges that nothing precludes a party
from including both a CDA claim and an action pursuant to § 1491(b) in the same
complaint. See, e.g., Taylor Consultants, Inc. v. United States, 90 Fed. Cl. 531, 537 (2009)
(describing a complaint that asserted “a CDA claim . . . for improper or bad faith
termination” and “a post-award protest . . . under 28 U.S.C.§ 1491(b)”). But in SMSI’s
Amended Complaint, SMSI unambiguously asserts only a CDA claim. See Am. Compl.
¶ 12 (“This Court has jurisdiction over this action pursuant to the Contract Disputes Act
of 1978 (41 U.S.C. § 7101 et seq.) and the Tucker Act (28 U.S.C. § 1491).”). Indeed, SMSI
reaffirmed that fact during the Court’s initial August 16, 2021 status conference. Tr.
7:16–22 (“THE COURT: But you do agree that there is no 1491(b) claim here at all,
correct? [PLAINTIFF]: Related to bids, Your Honor, no. THE COURT: Well, related to
a procurement action. This is a pure CDA claim in your Complaint. Correct?
[PLAINTIFF]: Yes, Your Honor.”). This concession is binding. See, e.g., Minter v. Wells
Fargo Bank, N.A., 762 F.3d 339, 347 (4th Cir. 2014) (“‘[A] lawyer’s statements may
constitute a binding admission of a party[]’ if the statements are ‘deliberate, clear, and
unambiguous[.]’” (quoting Fraternal Order of Police Lodge No. 89 v. Prince George’s Cnty.,
Md., 608 F.3d 183, 190 (4th Cir. 2010))); Checo v. Shineski, 748 F.3d 1373, 1378 n.5 (Fed.
Cir. 2014) (citing cases for the proposition that oral admissions should bind parties);
Hous. Auth. of Slidell v. United States, 149 Fed. Cl. 614, 633 n.34 (2020) (citing Minter and
Checo); Penna v. United States, 153 Fed. Cl. 6, 25 n.25 (2021) (citing Minter).
As a result, the Court reads SMSI’s Amended Complaint to assert only a CDA
claim. SMSI’s attempt in its briefs to recast its Amended Complaint as a § 1491(b) action
is rejected. But even if the Court were to ignore SMSI’s characterization of its own
Amended Complaint, the Court cannot discern any § 1491(b) action therein.
Consistent with Federal Circuit precedent, this Court looks to substance over
form when interpreting SMSI’s Amended Complaint: “Our inquiry, however, does not
end with the words of the complaint, however instructive they may be, for we still must
‘look to the true nature of the action in determining the existence or not of
jurisdiction.’” James, 159 F.3d at 579 (quoting Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed.
Cir. 1994)). Under this standard, SMSI’s Amended Complaint contains a § 1491(b)
action only if it alleges facts, which, if true, demonstrate: “[1] objections to a solicitation,
however, SMSI did not include such a request in its CDA claim submitted to the contracting
officer. Whether such relief nevertheless is available “as an incident of and collateral to” any
final money judgment, pursuant to 28 U.S.C. § 1491(a), is a question for a later date.
15
[2] objections to a proposed award, [3] objections to an award, [or 4] objections related
to a statutory or regulatory violation so long as these objections are in connection with a
procurement or proposed procurement.” System App. & Techs., Inc. v. United States, 691
F.3d 1374, 1380–81 (Fed. Cir. 2012), quoted in Tolliver Grp., 151 Fed. Cl. at 84 n.11; see also
28 U.S.C. § 1491(b)(1). The Court cannot locate any set of facts within SMSI’s Amended
Complaint constituting an action pursuant to 28 U.S.C. § 1491(b).
SMSI appears to argue that the following allegations in its Amended Complaint
qualify as an action pursuant to 28 U.S.C. § 1491(b): (1) “that Defendant had
communicated with [SMSI’s] surety regarding the potential ‘takeover’ of the contract at
issue in this case, as well as Defendant’s and the surety’s efforts to find a ‘completion
contractor[]’ to perform the follow-on ‘procurement’”; (2) “that two potential offerors
had been identified to complete the remaining work contemplated under the original
contract”; and (3) “that Defendant pre-emptively excluded [SMSI] from completing the
remaining work under the anticipated completion contract.” Pl. Mem. at 8 (discussing
Amended Complaint ¶¶ 89-97). None of these allegations — individually or
collectively — constitutes a § 1491(b) action. The Court agrees with the government
that “[t]he mere fact that the complaint includes a cursory discussion of the alleged
circumstances of a follow-on, or completion, contract does not transform this CDA case
into a bid protest under § 1491(b).” Def. Resp. at 11. The last allegation, regarding
SMSI’s having been excluded from the “remaining work under the anticipated
completion contract,” may be consistent with a possible § 1491(b) action, but such an
action quite simply has not been pled. Perry v. United States, 149 Fed. Cl. 1, 7 (2020)
(granting government’s motion to dismiss, pursuant to both RCFC 12(b)(1) and 12(b)(6),
because “a plaintiff must plead facts, not conclusory assertions of law” and explaining
that “[t]o the extent any of [plaintiff’s] claims fall within this Court’s jurisdiction, he
fails to allege sufficient facts — as opposed to conclusory legal assertions — which state
a claim upon which relief can be granted”), aff’d, 2021 WL 2935075 (Fed. Cir. July 13,
2021); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (conclusory allegations “are not entitled to the assumption of truth”).
Although SMSI attempts to remedy its omission(s) in its motion briefing, a party
cannot revise its operative complaint in that manner. See, e.g., McGrath v. United States,
85 Fed. Cl. 769, 772 (2009) (“This court does not possess jurisdiction to hear claims
presented for the first time in responsive briefing.”); Jackson v. United States, 2021 WL
5066589, at *4 n.8 (Fed. Cl. Nov. 1, 2021) (“Plaintiff cannot amend his complaint via his
response brief[.]” (citing RCFC 15(a))); Dakota Tribal Indus. v. United States, 34 Fed. Cl.
295, 298 n.2 (1995) (holding that “the court cannot consider the merits of” a theory
because “the complaint fail[ed] to ground plaintiff’s claims on this basis”); see also RCFC
15(a) (noting that after a party amends a pleading once as a matter of course, “a party
may amend its pleading only with the opposing party’s written consent or the court’s
leave”); cf. S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,
16
713 F.3d 175, 184 (4th Cir. 2013) (“It is well-established that parties cannot amend their
complaints through briefing or oral advocacy.”).14
The other allegations within SMSI’s Amended Complaint support only a CDA
claim. While SMSI argues that paragraphs 99–106 of its Amended Complaint — under
the heading “Count One: Improper Termination for Default” — qualify as an alleged
violation of a statute or regulation related to a procurement, see Pl. Reply at 10–11, that
count constitutes a classic CDA claim. See, e.g., Securiforce, 879 F.3d at 1358 (holding that
a claim seeking a declaration that termination for default was improper is a monetary
CDA claim).
SMSI further alleges that the VA violated FAR 49.402-3 (“Procedure for default”),
Pl. Reply at 10–11, but SMSI cannot transform this CDA claim into a § 1491(b) claim.
The violation SMSI alleges relates to SMSI’s contract with the government and thus is a
contract dispute properly decided as a CDA claim, pursuant to § 1491(a), and does not
support an action pursuant to § 1491(b). SMSI relies on two cases — Systems Application
& Technologies v. United States, 691 F.3d 1374 (Fed. Cir. 2012), and Turner Construction v.
United States, 94 Fed. Cl. 561 (2010) — but both are inapposite.
SMSI invokes Systems Application to argue that the Federal Circuit has defined
“procurement” to include “all stages of the process of acquiring property or services,
beginning with the process for determining a need for property or services.” Pl. Reply
at 11 (quoting Systems Application, 691 F.3d at 1381). SMSI argues that the VA’s alleged
violation of termination procedures qualifies as an alleged violation of a procurement
regulation because the purported violation “directly relates to the agency’s ‘need for’ a
completion contract, as there would be no need for a completion contract but for the
VA’s termination of the predecessor Contract.” Pl. Reply at 11.
The facts of Systems Application, however, do not support SMSI’s position.
Systems Application involved a plaintiff that had received a contract award and
protested the agency’s proposed corrective action for that same procurement. 691 F.3d
at 1378–80. The plaintiff in its complaint directly objected to the agency’s procurement
procedure:
In this case, SA–TECH objected to a solicitation and alleged
violations of statutes and regulations governing the
procurement process. The Army has not shown that this
protest has no ‘connection with a procurement.’ Rather SA–
14The Court notes that SMSI remains free to seek leave to file yet another amended complaint,
this time to include an action pursuant to 28 U.S.C. § 1491(b). The Court further notes that the
VA apparently entered into a replacement contract on October 28, 2021. See ECF No. 21.
Whether SMSI may qualify as an “interested party” with respect to that contract remains to be
seen, but SMSI’s Amended Complaint does not do so.
17
TECH’s complaint specifically challenged the Army’s announced
decision to amend or revise the solicitation — an
unambiguous objection ‘to a solicitation’ covered by the
Tucker Act. SA–TECH also alleged violations of the Service
Contract Act and procurement regulations — another basis
for jurisdiction.
Id. at 1381 (emphasis added) (quoting 28 U.S.C. § 1491(b)(1)). In other words, the
plaintiff’s objections in its complaint challenged a solicitation. In contrast, SMSI objected
only to termination procedures followed with respect to SMSI’s already awarded
contract, and not to an agency’s decision regarding a new procurement.
Turner Construction is similarly distinguishable. SMSI asserts that the plaintiff in
Turner “challenged a decision by the [agency] to ‘strip’ [plaintiff] of a recently awarded
contract and to ‘re-procure’ the same ‘with [plaintiff] eliminated from the competition.’”
Pl. Reply at 12 (quoting 94 Fed. Cl. at 563). In that case, however, the plaintiff’s action
was a bid protest pursuant to 28 U.S.C. § 1491(b) and expressly included a challenge to
the agency’s decision to re-procure the contract. 94 Fed. Cl. at 563, 573 (explaining that
“[t]he GAO . . . recommended that the Army strip [plaintiff] of the contract . . . and re-
procure [it]” and noting that plaintiff “argue[d] that the [agency’s] decision to
implement the recommendation of the GAO was arbitrary and capricious”). The case,
thus, was focused on the agency’s allegedly improper procurement action, but was not
a claim for “relief arising under or relating to the [plaintiff’s] contract.” FAR 2.101
(defining “claim” for CDA purposes). SMSI’s Amended Complaint, in contrast, does
not contain a bid protest action pursuant to § 1491(b); instead, as SMSI admitted, its
Amended Complaint represents a “pure CDA claim” related to the termination of its
contract. Tr. 7:20–22. If SMSI is correct that the government improperly terminated
SMSI’s contract for default, SMSI’s remedy is a monetary one — in the form of a
conversion to a termination for convenience (and possible money damages) — and not
an injunction reinstating the contract (or precluding a new procurement). On that note,
the plaintiff in Turner also “request[ed] that the Court issue a permanent injunction
ordering restoration of Turner’s contract for the . . . project and barring the [agency]
from re-procuring the contract,” 94 Fed. Cl. at 585, something that SMSI’s Amended
Complaint does not do. Am. Compl. at 19.
In any event, as explained above, Securiforce demonstrates (and the FAR
provides) that only monetary relief is available for a claim challenging a termination for
default. In other words, SMSI cannot — via ipse dixit in its briefing — transmogrify a
proper CDA claim for money damages into a bid protest-type action for equitable relief
under 28 U.S.C. § 1491(b).
Finally, SMSI’s contention that “this Court has found jurisdiction under 28 U.S.C.
§ 1491(b) to rule upon a wide variety of cases,” Pl. Mem. at 10, does not support SMSI’s
request for a preliminary injunction. None of the cases upon which SMSI relies involve
18
a situation where the Court considered issuing injunctive relief pursuant to § 1491(b) for
a CDA claim, challenging a default termination under § 1491(a).15
In sum, SMSI’s Amended Complaint does not contain facts amounting to an
action pursuant to 28 U.S.C. § 1491(b) and does not contain any request for relief
pursuant to that statutory subsection. SMSI’s reply brief does not — and, indeed,
cannot — cure that omission.
IV. CONCLUSION
The law is clear that SMSI’s Amended Complaint contains only a CDA claim
pursuant to 28 U.S.C. § 1491(a), which does not provide this Court with the power to
grant SMSI’s motion for preliminary equitable relief. None of SMSI’s arguments
persuade the Court otherwise. Accordingly, the Court DENIES Plaintiff’s motion for
reconsideration.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
15SMSI cites (1) CCL, Inc. v. United States, 39 Fed. Cl. 780 (1997); (2) OTI Am., Inc. v. United States,
68 Fed. Cl. 108 (2005); (3) K-Lak Corp. v. United States, 93 Fed. Cl. 749 (2010); and (4) Tolliver Grp.
Inc. v. United States, 151 Fed. Cl. 70 (2020). Pl. Mem. at 10–11. The CCL plaintiff “contend[ed]
that the [agency] violated [the Competition in Contracting Act] by expanding [a] contract
beyond its scope without opening up that additional work to competition.” 39 Fed. Cl. at 788.
In OTI America, “[t]he question presented” was “whether the third, concluding prong of
Paragraph (1) of Subsection 1491(b) embraces . . . a . . . situation . . . where the agency has
entered into identical multi-award contracts that essentially involve a competition in stages to
develop a new product, and ultimately to procure that product, and the protest concerns
objections to the agency’s actions in eliminating one of the competitors at an intermediate
stage.” 68 Fed. Cl. at 114. The court held that “there seems to be no doubt that the competition
between and among contractors for an ultimate award occurs ‘in connection with a
procurement or a proposed procurement.’” Id. (quoting 28 U.S.C. § 1491(b)). In K-Lak Corp., the
plaintiff alleged in its complaint violations of statutes related to an agency’s procurement that
followed the expiration of the plaintiff’s contract. 93 Fed. Cl. at 751–52 (noting, amongst other
alleged violations of law in connection with a procurement, allegations of an illegal sole-source
award). The Tolliver plaintiffs “claim[ed] that the agency’s decision to cancel
two . . . solicitations fails the Administrative Procedure Act [] standard of review applicable in
actions brought pursuant to § 1491(b)(1)” and “assert[ed] that the agency’s decision and
supporting rationale — namely, to move the solicitations at issue to a recently awarded
[multiple award IDIQ contract] — violate[d] FAR 19.502-2(b)[.]” 151 Fed. Cl. at 80. Unlike all
the plaintiffs in the foregoing cases, SMSI alleges no facts supporting an action challenging, or
that is otherwise in connection with, a procurement or proposed procurement, and thus fails to
state a claim within this Court’s § 1491(b) jurisdiction.
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