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Appeal Rights in APA Case Deprived CFC of Jurisdiction

The Court of Federal Claims dismissed a protest for lack of jurisdiction because the protester's appeal rights in a similar federal district court action had not yet expired and that action was therefore "pending" for purposes of 28 USC 1500. The district court dismissed the suit after concluding the CFC had exclusive jurisdiction over the protester's Administrative Procedure Act challenge to the government's decision to insource weather forecasting work. The protester then filed in the CFC, maintaining the CFC had Tucker Act jurisdiction over the challenge. In its motion to dismiss, the government argued the protest was jurisdictionally defective under 28 USC 1500. To obtain a dismissal under 28 USC 1500, the movant must show the government is the defendant in both actions, the two suits share the same operative facts and request the same relief, and there is an action pending in another federal court when suit is filed in the CFC.

Suit Still "Pending"

The first two factors were met --both actions named the government as a defendant, and the protester confirmed the requested relief and the operative facts in both suits overlapped. With respect to the final factor, the government contended the time to appeal the district court's dismissal had not yet expired, so that action was still "pending" for purposes of 28 USC 1500. After noting the Supreme Court and the Court of Appeals for the Federal Circuit had not decided the issue, and analogous CFC decisions had reached opposite results, the CFC followed a decision that held a suit is "pending" under 28 USC 1500 until there has been a final adjudication on appeal or until the time for appeal has run. Here, the sixty-day time period to appeal the district court's dismissal had not expired, so the protester still had the right and time to file an appeal. The exercise of Tucker Act jurisdiction would cause "inefficiency and court overlap" if the protester filed an appeal. The protester chose to file under the APA, and it still took the position that review of the insourcing decision was proper under the APA. Moreover, there appeared to be ample time to refile in the CFC in the event the district court's dismissal was affirmed on appeal. (Vero Technical Support, Inc. v. U.S., FedCl, 54 CCF 79,439)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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