NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-5051
CW GOVERNMENT TRAVEL, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
and
NORTHROP GRUMMAN SPACE & MISSION SYSTEMS CORPORATION,
Defendant-Appellee.
__________________________
DECIDED: December 6, 2005
__________________________
Before LOURIE, CLEVENGER, and LINN, Circuit Judges.
CLEVENGER, Circuit Judge.
Plaintiff-appellant CW Government Travel, Inc. ("Carlson") appeals the judgment
of the United States Court of Federal Claims in favor of defendants-appellees, the
United States ("government") and Northrop Grumman Space & Mission Systems
Corporation ("Northrop Grumman"). Carlson protested modifications to contract number
DAMT01-98-D-1005 ("DTS DTR-6 contract") between the government and Northrop
Grumman, alleging that the modifications constituted a violation of the Competition in
Contracting Act ("CICA"), 41 U.S.C. § 253(a), and seeking a permanent injunction of the
restructured contract.
Before the Court of Federal Claims, the government and Northrop Grumman, as
defendant-intervenor, filed a motion to dismiss, or in the alternative, for summary
judgment. Carlson opposed and filed a cross-motion for summary judgment. The Court
of Federal Claims granted the government's motion in part and denied it in part and
likewise granted Carlson's motion in part and denied it in part. With respect to the
portion of the contract intended to procure a computerized travel management system,
the court determined that there were issues of fact as to whether the contract
modifications violated CICA. However, the court ruled that, even assuming a CICA
violation, Carlson had not established a right to injunctive relief. As Carlson sought no
other relief, the court granted the government's motion with regard to that portion of the
contract. CW Gov't Travel Inc. v. United States, 61 Fed. CI. 559 (2004) ("Summary
Judgment").
Carlson moved for reconsideration and modification of the court's judgment
pursuant to Rule 59; the court denied that motion, CW Government Travel, Inc. v.
United States, 63 Fed. Cl. 459 (2005) ("Reconsideration"), and judgment was entered
on January 18, 2005, CW Government Travel, Inc. v. United States, No. 03-1274 (Fed.
Cl. Jan. 18, 2005). Carlson timely appealed the judgment to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Because we find that the Court of
Federal Claims properly exercised its equitable discretion in declining to award
injunctive relief, we affirm.
05-5051 2
I
In 1997, the Department of Defense ("DOD") solicited bids for the
DTS DTR-6 contract, which was intended to procure a computerized travel
management system, the "Common User Interface" or CUI, that would essentially result
in a world-wide paperless, automated, and centralized travel management system.
Summary Judgment, 61 Fed. CI. at 563. In 1998, the Department awarded the contract
to BDM International Inc., which was acquired by TRW in 1998, and which in turn was
purchased by Northrop Grumman in 2002.1
The contract was a five-year fixed-price requirements contract, with three one-
year options. Id. at 564. The bid solicitation required that the contractor develop the
CUI using commercial off-the-shelf products and assumed that the contractor
would install software on user desktops at each military location in order to achieve
connectivity, such that the contractor would have to create interfaces with numerous
other DOD software products and networks. Id. at 563. Under the initial solicitation,
operational deployment of the system was to commence at the first DOD site in
Defense Travel Region 6 ("DTR-6") within 120 days of the contract award, while the
system was to be fully operational and integrated world-wide, at approximately 11,000
DOD sites, by September 2001. Id. at 564. However, Northrop Grumman's
performance was plagued by numerous delays and substantial cost over-runs, such that
the contract was projected to cost over fifty percent more than its initial budget and was
four years behind schedule.
1
Because the Court of Federal Claims decision, the briefs, and the record
refer to TRW and Northrop Grumman interchangeably, we will simply refer to the
contractor as "Northrop Grumman."
05-5051 3
In 2001, Northrop Grumman and the government began negotiations to
restructure the contract, resulting in Contract Modifications 25, 27, and 29
("modifications"). Id. The modifications altered portions of the contract relating to both
traditional travel services and the computerized travel management system.
Meanwhile, Carlson had obtained traditional travel services contracts with the United
States Army, and in 2003, along with Northrop Grumman and a third party, was
awarded a contract by the General Services Administration ("GSA") for web-based
travel systems for all government agencies.
Carlson did not immediately protest the contract modification, but on May 23,
2003, filed a complaint with the Court of Federal Claims. Count I of the amended
complaint alleged that three fundamental changes to the contract required competitive
procurement under CICA: (1) addition of traditional travel services; (2) modification of
the requirements for the CUI; and (3) restructuring of the pricing provisions of the
contract. Reconsideration, 63 Fed. Cl. at 461. In Count II of the amended complaint,
Carlson sought a permanent injunction, requesting that the court enjoin Northrop
Grumman's performance of the DTS DTR-6 contract and that the court require the
government to issue a new solicitation for the work encompassed in the out-of-scope
modifications.
The government filed a motion to dismiss or, alternatively, for summary
judgment, arguing that Carlson had waived its right to challenge the restructuring of the
DTS DTR-6 contract, that Carlson lacked standing to challenge the modifications to the
contract, and that the modifications to the contract were within the scope of the original
contract, such that they did not require a new competitive procurement. Carlson
05-5051 4
opposed and filed a cross-motion for summary judgment. Both parties filed statements
of fact based upon the administrative record and supporting materials. The court
granted both parties' motions in part and denied both parties' motions in part.
With respect to the new contract requirements for traditional travel services, the
Court of Federal Claims found that the restructured contract exceeded the scope of the
original contract, and thus violated CICA, and that Carlson had standing to obtain
redress. Summary Judgment, 61 Fed. CI. at 570-74. Finding that the changeover to a
new service provider would not disrupt traditional travel functions, the court granted the
injunction requested by Carlson and ordered that the agency procure traditional travel
services in DTR-6 through a competitive bid process. Id. at 574-76. Thus, Carlson
prevailed on Counts I and II with respect to the traditional travel services. The
government does not appeal this decision.
With respect to the modifications of the CUI requirements and the pricing
modifications, the Court of Federal Claims determined that there were issues of fact as
to whether these modifications violated CICA but ruled that, even assuming as such,
Carlson had not established its right to injunctive relief. Id. at 576-77. Assuming that
CICA had been violated, the court granted Carlson a presumption of success on the
merits and irreparable harm. Id. at 577-78. However, the court determined that
because so much time and money had been spent on the contract, and because the
contract was already substantially delayed, the defendants would be substantially
harmed if further performance were enjoined. Id. at 578. Further, the court determined
that the public interest supported continued performance. Id. at 578-79. Thus, the
court found that, even assuming Carlson's success on the merits, the balance of
05-5051 5
hardships and the public interest outweighed any irreparable harm to Carlson, and thus
injunctive relief was not warranted. Id. at 579. Consequently, the court granted
summary judgment in favor of the government on Count II of the amended complaint
with respect to these modifications.
Carlson moved for reconsideration and modification of the court's judgment
pursuant to Rule 59, arguing, among other points, that the decision amounted to an
impermissible refusal to enforce CICA, that the issue of injunctive relief was not before
the court on summary judgment, and that Carlson had no opportunity to develop the
necessary factual record for the court to undertake an analysis of whether an injunction
was appropriate. See Reconsideration, 63 Fed. Cl. 459. The court denied Carlson's
Rule 59 motion.
On appeal, Carlson reiterates the arguments made to the Court of Federal
Claims in its Rule 59 motion. Carlson argues that the court's decision that injunctive
relief was not warranted runs afoul of the Supreme Court's decision in United States v.
Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001). In particular, Carlson
argues that because the court assumed that CICA had been violated, the decision not
to award an injunction amounted to an impermissible decision not to enforce CICA.
Carlson also claims that the court erred in addressing whether injunctive relief
was inappropriate, arguing that the government had not moved for summary judgment
on those grounds and that neither Carlson nor the government had submitted evidence
relevant to the balance of hardships and the public interest. Finally, Carlson argues that
the court erred in failing to hold an evidentiary hearing to determine the facts relevant to
assessing whether an injunction was warranted.
05-5051 6
II
In deciding whether a permanent injunction should issue, a court considers:
(1) whether the plaintiff has succeeded on the merits of the case; (2) whether the
plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the
balance of hardships to the respective parties favors the grant of injunctive relief; and
(4) whether it is in the public interest to grant injunctive relief. PGBA v. United States,
389 F.3d 1219, 1228-29 (Fed. Cir. 2004) (citing Amoco Prod. Co. v. Vill. of Gambell,
Alaska, 480 U.S. 531, 546 n. 12 (1987)). This court will defer to a decision of the Court
of Federal Claims to grant or deny injunctive relief, only disturbing such a decision when
it amounts to an abuse of discretion. Id. at 1223-24 (citing Stratos Mobile Networks
USA, LLC v. United States, 213 F.3d 1375, 1379 (Fed. Cir. 2000)).
An abuse of discretion may be established by showing that the court "made a
clear error of judgment in weighing the relevant factors or exercised its discretion based
on an error of law or clearly erroneous fact finding." Int'l Rectifier Corp. v. Samsung
Elecs. Co., 361 F.3d 1355, 1359 (Fed. Cir. 2004) (citing Joy Techs., Inc. v. Flakt, Inc.,
6 F.3d 770, 772 (Fed. Cir. 1993)). A finding of fact is "'clearly erroneous' when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed." Maritrans Inc. v.
United States, 342 F.3d 1344, 1351 (Fed. Cir. 2003) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).
05-5051 7
III
Carlson argues that the Supreme Court's decision in Oakland Cannabis requires
that, where there has been violation of a statute, relief of some sort must be awarded,
and that when injunctive relief is the only relief possible, or the only relief sought, it
always must be granted, regardless of a court's determination that the public interest
would be ill-served by issuance of an injunction.
First of all, contrary to Carlson's arguments, Oakland Cannabis does not
abrogate the traditional discretion of a trial court to determine whether or not injunctive
relief is available. Rather, the Supreme Court found that trial courts retain their
traditional discretion "unless a statute clearly provides otherwise." Oakland Cannabis,
532 U.S. at 484. Neither CICA nor 28 U.S.C. § 1491, which grants the Court of Federal
Claims jurisdiction over bid protests, "clearly provides" that the court has no discretion
over equitable relief. Indeed, Carlson does not argue that CICA itself removed
equitable discretion from the court. Further, in PGBA, we expressly upheld the right of
the Court of Federal Claims to refuse injunctive relief in a bid protest case, holding that
section 1491 "does not automatically require a court to set aside an arbitrary,
capricious, or otherwise unlawful contract award." 389 F.3d at 1225.
While the Supreme Court did not abrogate the traditional equitable discretion of
trial courts, it noted that the courts' discretion is not absolute. In particular, a court may
not consider, when deciding whether to award an injunction, factors that Congress has
already specifically deemed inapplicable to the statute. Oakland Cannabis, 532 U.S. at
497-98. Carlson argues that the Court of Federal Claims did just that when it
considered whether enjoining the contract in suit was in the public interest. That is,
05-5051 8
Carlson argues that since CICA requires agencies to conduct full and open competition
for their contracts, Congress must have determined that performance of an
uncompetitive contract never could be in the public's best interest. Thus, Carlson
essentially asks us to find that the Court of Federal Claims is absolutely barred from
considering the public interest when determining whether or not to enjoin a contract
procured in violation of CICA.
Nothing in Oakland Cannabis suggests the sweeping effect Carlson would assign
to that decision. Rather, Oakland Cannabis indicates that, where Congress has
specifically determined that a particular exemption to a statute is not appropriate, in that
case, a medical necessity exemption to a statute prohibiting the manufacture and
distribution of marijuana, a court may not decline to award injunctive relief on the basis
of that exemption. See id. at 493, 498-99. Carlson does not point to a specific
exemption, rejected by Congress during enactment of CICA, upon which the court's
decision not to award injunctive relief now relies.
Further, Congress considers the public interest in adopting every statute. Under
Carlson's reading, Oakland Cannabis would remove the "public interest" prong from an
injunctive relief analysis for violation of any statute. There is simply no indication in
Oakland Cannabis that the Supreme Court intended to so drastically alter the traditional
equitable discretion of trial courts. In short, Carlson has not shown that the Court of
Federal Claims ran afoul of Oakland Cannabis when it determined that, even assuming
that the contract in suit violated CICA and granting Carlson a presumption of success
on the merits, the balance of hardships and the public interest outweighed any harm to
Carlson, such that injunctive relief was not warranted.
05-5051 9
IV
Carlson also argues that the court erred in granting summary judgment to the
government on the basis of the unavailability of equitable relief, as the government did
not raise this issue in its summary judgment motions. Thus, Carlson argues that it was
not afforded an opportunity to proffer material evidence or to address the legal basis for
the court's decision. However, this court has repeatedly upheld the power of trial courts
to enter summary judgment sua sponte or in favor of a non-movant. Massey v. Del
Labs., Inc., 118 F.3d 1568, 1572 (Fed. Cir. 1997); Int'l Visual Corp. v. Crown Metal Mfg.,
Inc., 991 F.2d 768, 770 (Fed. Cir. 1993).
Further, Carlson had ample opportunity to address the issues pertaining to
equitable relief. First of all, Carlson, in its own motion for summary judgment, argued
that "the Court should . . . order that the DTS DTR-6 Contract be terminated and the
[DOD's] requirement for a web-based end-to-end travel management system and
traditional travel services . . . be promptly procured under fair and open competition."
J.A. at 198-99. In opposing Carlson's summary judgment motion, the government
argued that injunctive relief was not warranted, as it would require forfeit of all money
paid to Northrop Grumman under the contract, payment of termination fees,
discontinuance of the CUI, and delay in reinstatement of a functional program. In
addition, the parties briefed many of the same issues when addressing the
government's laches argument. In particular, the government argued that Carlson's
failure to protest the contract modification for fourteen months would result in material
prejudice to the government, as delays resulting by injunctive relief would cause the
government "serious continuing economic harm since . . . the Government has spent
05-5051 10
millions of dollars developing and deploying" the CUI. J.A. at 173. Thus, even though
the government did not move for summary judgment on the grounds ultimately relied
upon by the court, Carlson had ample opportunity to address those issues.
Carlson also argues that the court erred in failing to grant an evidentiary hearing
to determine the facts necessary to assess whether injunctive relief was warranted.
However, parties to bid protest actions are not necessarily entitled to evidentiary
hearings. The statute which confers upon the Court of Federal Claims jurisdiction over
bid protests, 28 U.S.C. § 1491(b)(3), "expressly requires the trial court to give 'due
regard' to 'the need for expeditious resolution of the action.'" Bannum, Inc. v. United
States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) (quoting 28 U.S.C. § 1491(b)(3) (2001)).
Summary judgment decisions under RCFC 56.1 are generally made on the
administrative record, "as may be supplemented consistent with RCFC 56(a) or (b)." Id.
With respect to the issue of relief, the court may, if it chooses, supplement the
administrative record with an evidentiary hearing. See, e.g., PGBA, 389 F.3d at 1223.
However, the decision to hold an evidentiary hearing is within the court's discretion, and
absent abuse of that discretion, failure to hold such a hearing is not reversible error.
In addition, in this case, Carlson was given ample opportunity to supplement the
record. As noted above, Carlson requested injunctive relief on the CUI portion of the
contract in its own summary judgment motion. Further, Carlson was permitted to submit
any evidence related to the motions for summary judgment.2 Indeed, Carlson submitted
2
Carlson argues that the court's determination that material issues of fact
existed with respect to the summary judgment motions indicates that the record was not
sufficiently developed. However, determining whether there was a fundamental change
to the contract involves very different facts than determining whether the balance of
hardships and the public interest warrant enjoining performance of the contract.
05-5051 11
five volumes of evidence in support of its summary judgment motion. Thus, Carlson
had ample opportunity to further inform the court as to how the balance of hardships
and the public interest warranted enjoining performance of the contract.
Finally, based upon the evidence before the Court of Federal Claims at the time
of its decision, the court's determination that injunctive relief was not warranted was not
an abuse of discretion. At the time of Carlson's complaint, the contract was in its fifth of
eight years of performance, and at the time of the court's decision, its sixth year of
performance. Summary Judgment, 61 Fed. CI. at 578. The contract is thus now in its
seventh year of performance. The court found that a large percentage of the work on
the contract has been completed and that both the government and Northrop Grumman
have expended significant time, effort, and resources. Id. Evidence also indicated that
the contract is already delayed beyond its initial deadlines, which proved to be overly
optimistic, and that an injunction would delay the contract even further. Id. The
evidence on which the court relied also indicated that Northrop Grumman is the owner
of the CUI system that it developed such that, if the contract were enjoined, Northrop
Grumman would walk away with the system and the government would have to
recommence development of the system. Id. In the meantime, the CUI would be
suspended. Id. at 578-79. In addition, evidence indicated that no contractor has a
system meeting the contract requirements and ready to be deployed. Indeed, Carlson
concedes that it could not immediately take over the contract, as its web-based travel
system does not meet the contract requirements and would require modification.
Thus, the Court of Federal Claims concluded that, even granting Carlson a
presumption of success on the merits and irreparable harm, the balance of hardships
05-5051 12
and the public interest weighed against enjoining further performance of the DTS DTR-6
contract. That determination did not constitute a clear error of judgment, nor was it
based on an error of law or a clearly erroneous finding of fact. As such, the court's
decision not to enjoin performance of the contract did not constitute an abuse of
discretion.
V
As a final matter, we must address Carlson's request to supplement the record
on appeal. While this appeal was pending, on September 29, 2005, the Investigations
Subcommittee of the United States Senate's Committee on Homeland Security and
Governmental Affairs ("Subcommittee") held hearings regarding the benefits and costs
of the DTS DTR-6 contract. Carlson asserts that, during these proceedings, a DOD
official informed the Subcommittee that the government owns the CUI and its software,
such that if the contract were to be terminated, the government would be able to turn
over the software developed by Northrop Grumman to another contractor. This
testimony, Carlson argues, directly contradicts representations made by the government
to the Court of Federal Claims that if the contract were to be terminated, the
government would have to recommence development of the system. If the testimony
before the Subcommittee is true and accurate, it could undermine the determination of
the Court of Federal Claims that enjoining the contract would cause substantial cost to
the government and delays in implementing the CUI system. Thus, Carlson requested
leave to supplement the record with the testimony before the Subcommittee, in an effort
to persuade this court that the decision of the Court of Federal Claims amounted to an
abuse of discretion.
05-5051 13
However, the record on appeal is generally limited to that which was before the
trial court. Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1116 (Fed. Cir.
2000); Fed. R. App. P. 10(a). Our sister circuits have occasionally granted leave to
supplement the record on appeal, but any authority to enlarge the record "is rarely
exercised and is a narrow exception" to the general rule limiting the record to that
considered below. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th
Cir. 1993); see also, Ross v. Kemp, 785 F.2d 1467, 1474-76 (11th Cir. 1986).
Further, as conceded at oral argument, Carlson may present the Subcommittee
testimony to the Court of Federal Claims as part of a Rule 60(b) motion to reopen the
judgment. In particular, under RCFC 60(b)(2), Carlson may, within a reasonable time
not to exceed one year from entry of judgment, move to reopen the judgment of the
Court of Federal Claims for newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule 59(b). As judgment
was entered on January 18, 2005, Carlson's opportunity to file a Rule 60(b) motion with
the Court of Federal Claims has not yet passed. Thus, although we deny Carlson's
motion to supplement the record, and we affirm the decision of the Court of Federal
Claims on appeal, we do so without prejudice to any right Carlson has to pursue its
concern about the effect of the testimony before the Senate on the correctness of the
decision of the Court of Federal Claims that equitable relief as requested is not
warranted.
05-5051 14