Piedmont Propulsion Systems, LLC v. United States ( 2023 )

In the United States Court of Federal Claims
No. 23-330 C
(Filed: May 12, 2023)
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PIEDMONT PROPULSION *
SYSTEMS, LLC, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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and *
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AIRCRAFT PROPELLER SERVICE, *
LLC *
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Defendant-Intervenor. *
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MEMORANDUM OPINION
On May 10, 2023, the Government filed a motion to remand one out of the eight grounds
raised in Plaintiff’s complaint “to the United States Coast Guard for 27 days (until June 6, 2023)
to conduct an investigation into the allegations of organizational conflict of interest (OCI)
contained in the amended complaint and motion for judgment on the administrati[ve] record of
plaintiff.” ECF No. 33 at 1. According to the Government, “[a] remand here is in the interests
of justice because it would allow the Coast Guard to consider Piedmont’s OCI allegations,
document its analysis, and determine whether appropriate remedial measures should be taken.”
Id. at 2. Plaintiff opposes the Government’s motion asserting, inter alia, that it will be
prejudiced by the delay caused by the remand, that it has asserted seven other reasons for
enjoining the procurement at issue beyond the OCI, and that the Coast Guard has had at least two
previous opportunities to investigate the alleged OCI. See generally ECF No. 34.
Rule 52.2 of the Rules of the United States Court of Federal Claims (“RCFC”) allows the
Court to order remand “of appropriate matters to an administrative or executive body or official.”
RCFC 52.2(a). In cases in which an agency seeks a remand without admitting error, “if the
agency’s concern is substantial and legitimate, a remand is usually appropriate.” SKF USA Inc.
v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). However, in such a case, the Court has
discretion to decide whether remand is appropriate. Id. In determining whether an agency’s
concern is substantial and legitimate, several judges of this Court, including the undersigned,
have utilized the test articulated in Ad Hoc Shrimp Trade Action Comm. v. United States, 882 F.
Supp. 2d 1377 (Ct. Int’l Trade 2013). See, e.g., Lyon v. United States, 161 Fed. Cl. 88 (2022);
Owens & Minor Distr., Inc., 154 Fed. Cl. 349 (2021). Under that test,“[a]n agency’s concerns
are substantial and legitimate where (1) the agency provides a compelling justification for its
remand request; (2) the need for finality does not outweigh the justification for voluntary remand
presented by the agency; and (3) the scope of the agency’s remand request is appropriate.”
Keltner v. United States, 148 Fed. Cl. 552, 564 (2020) (citing Ad Hoc Shrimp Trade Action
Comm., 882 F. Supp. 2d at 1381) (internal quotations omitted). Moreover, “the case law
demonstrates that the trial court has substantial discretion depending on the timing of the
government’s motion, its representations regarding the reasons for a remand, the plaintiff’s
factual allegations viewed through the prism of the particular legal issues involved, and the
overall fitness and completeness of the administrative record available for the Court’s review.”
Id. at 563. “Thus, despite the tendency among courts to grant motions for remand, remand is not
appropriate in all circumstances and the Court should only grant such a motion after serious
consideration.” Trace Sys. Inc. v. United States, No. 22-404 C, 2022 WL 2963486 (Fed. Cl. July
26, 2022) (citing Rahman v. United States, 149 Fed. Cl. 685, 690 (2020)).
Here, remand is not appropriate. First, not only is the agency not confessing error; it is
also not confessing the fact that it has already decided the OCI issue. In its motion, the
Government asserts that remand would “allow the Coast Guard to consider Piedmont’s OCI
allegations, document its analysis, and determine whether appropriate remedial measures should
be taken.” ECF No. 33 at 2. But the Coast Guard has already at least once considered Plaintiff’s
OCI allegation and denied it. See ECF No. 34-2; see also ECF No. 1-23. While the denial letter
does not address the OCI allegation in particular, much less articulate a basis for denying that an
OCI exists, the Court has to presume that when Plaintiff brought an OCI allegation before the
Coast Guard for agency-level review, the Coast Guard actually looked at it. In short, the Coast
Guard has already “consider[ed] Piedmont’s OCI allegations” and “determine[d] . . . appropriate
remedial measures should [not] be taken.” Thus, this remand request appears to actually be a
request to give the agency the opportunity to “document its analysis.” Although the Court may
need to give the Coast Guard the opportunity to reconsider and/or document its OCI analysis at
some point after examining the OCI issue on the merits, given the seven other grounds for protest
and the fact that the Court can order a remand at a later date, remand is not warranted at this
juncture.
The need to move forward with this bid protest (i.e., the need for finality) and the timing
of the Government’s motion also support denying remand. As mentioned above, Plaintiff has
asserted eight reasons for enjoining the Coast Guard from the proceeding with the solicitation at
issue. Its OCI allegation is only one of those eight reasons, and it is an allegation that might be
subsumed by other protest grounds. Moreover, the Government has known about this allegation
for some time and has rejected it at least once. See ECF Nos. 1-21 and 1-23; ECF Nos. 34-1 and
34-2. Accordingly, this is not an instance in which the Government requests remand after it
reads a Plaintiff’s motion for judgment on the administrative record and only then can fully
understand the nature of the protest ground and the possibility that further agency action may
resolve the protest or greatly assist the Court in deciding the protest. The OCI allegation was
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clearly made to the Coast Guard on March 30, 2023, as part of an agency-level protest and may
have been discerned known by the Coast Guard as early as October 28, 2022, as part of a
different agency-level protest brought by Plaintiff. It was also clearly alleged in Plaintiff’s April
14, 2023, amended complaint. The Government thus should have been aware of this allegation
before Plaintiff filed its motion for judgment on the administrative record and requested remand
prior to the filing of Plaintiff’s motion if remand was truly necessary. There is no reason to
delay further consideration of this protest now (and after Plaintiff has incurred the time and
expense of filing its motion) for the Coast Guard to examine an issue it has already rejected.
Therefore, the Government’s motion to remand is DENIED. The Government (and
Defendant-Intervenor if it so chooses) shall file its cross-motion and response on or before May
18, 2023, per the previously issued scheduling order in this case.
IT IS SO ORDERED.
s/ Zachary N. Somers
ZACHARY N. SOMERS
Judge
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