UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL STAR ROUTE MAIL
CONTRACTORS ASSOCIATION, INC.,
Plaintiff
Civil Action No. 16-2350 (CKK)
v.
UNITED STATES POSTAL SERVICE,
Defendant
MEMORANDUM OPINION
(December 19, 2016)
This case arises out of the U.S. Postal Service’s incipient efforts to comply with an
arbitration decision and award that resolved a grievance by the American Postal Workers Union
relating to the Postal Service’s award of private contracts for transport of the mail without prior
notice to the Union. Having found that the Postal Service had engaged in willful, “wholesale and
repeated violations of its obligations” to the Union under the Collective Bargaining Agreement,
the arbitrator ordered the Postal Service to convert the 110 disputed routes (or other routes as
agreed to with the Union) to routes to be staffed by Union members; the arbitration award allows
the Postal Service six months, or until February 18, 2017, which can be extended by agreement,
to complete this conversion. U.S. Postal Serv. v. Am. Postal Workers Union, AFL-CIO, Case No.
Q06C-4Q-C 11182451, at *16, 20 (Aug. 18, 2016) (Das, Arb.) (“Arbitration Award”). 1
1
Numerous copies of the Arbitration Award have been filed in this case. For simplicity and
clarity, the Court shall cite directly to the Arbitration Award, identical copies of which have been
filed as Exhibit 1 to Plaintiff’s Complaint, ECF No. [1-1]; Exhibit 1, Attachment B to Plaintiff’s
Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. [6-1]; and Exhibit
1, Attachment A to the Postal Service’s Opposition to Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction and Motion to Dismiss Plaintiff’s Complaint, ECF
No. [13-2].
Among the contracts addressed in the Arbitration Award are those held by members of
the National Star Route Mail Contractors Association (“Plaintiff” or “Plaintiff Association”). On
November 30, 2016, Plaintiff initiated this action and on December 2, 2016, requested expedited
hearing upon its Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiff
seeks declaratory and injunctive relief to prevent the Postal Service “from taking any action to
implement the portion of the August 18, 2016[,] arbitration award that directs the Postal Service
to Terminate up to 110 highway mail transportation routes currently served by contractors so that
the routes may be served by Postal Service employees.” Pl. Mot. for TRO & PI at 1.
Before the Court are Plaintiff’s [6] Motion for Temporary Restraining Order and
Preliminary Injunction and the [14] Motion to Dismiss by Defendant United States Postal
Service (“USPS” or “Postal Service”), in which [15] Intervenor American Postal Workers Union
AFL-CIO (“APWU” or “Union”) joins. Defendant Postal Service has submitted its Motion to
Dismiss simultaneously with its [13] Opposition to Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction and relies on the same Memorandum of Points and Authorities
to support both its Opposition and its Motion to Dismiss. Intervenor APWU similarly relies on
the same arguments and authorities in support of its joinder in Defendant Postal Service’s
Motion to Dismiss as in its [11] Opposition to Plaintiff’s Motion. Also before the Court is
Plaintiff’s [16] Reply in support of its Motion for Temporary Restraining Order and Preliminary
Injunction. While captioned by Plaintiff solely as a “reply,” the Court also considers it as
Plaintiff’s opposition to Defendant’s Motion to Dismiss; Plaintiff addresses the jurisdictional and
other substantive arguments that Defendant and Intervenor submit in support of their Motion to
Dismiss, and the Court further notes that during the Status Hearing held by teleconference on
December 5, 2016, the Court also raised jurisdictional questions and requested, in particular, that
2
the parties address the justiciability questions of standing and ripeness in their briefing. The
Court, in an exercise of its discretion, does not find it necessary to call for a reply from
Defendant or Intervenor in further support of Defendant’s Motion to Dismiss and deems both
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction and Defendant’s
Motion to Dismiss and Intervenor’s joinder therein fully briefed and ripe for adjudication.
Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a
whole, the Court GRANTS Defendant’s [14] and Intervenor’s [15] Motion to Dismiss and
DENIES Plaintiff’s [6] Motion for Temporary Restraining Order and Preliminary Injunction. The
Court finds that it lacks subject matter jurisdiction over this matter. First, Plaintiff lacks standing
to bring these claims, which are not yet ripe for adjudication. Additionally, to the extent that
these claims may be brought at some future time, jurisdiction is vested in the United States Court
of Federal Claims. Lacking jurisdiction over the matter, the Court does not address Plaintiff’s
2
The Court’s consideration has focused on the following documents:
• Plaintiff’s Complaint (“Compl.”), ECF No. [1] and Plaintiff’s Corrected Complaint
(“Corr. Compl.”), ECF No. [4] (when referencing the Complaint itself, the Court shall
refer to the Corrected Complaint, ECF No. [4], but when referencing the exhibits, the
court shall refer to the attachments and exhibits included with the original Complaint,
ECF No. [1]);
• Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, (“Pl.’s
TRO & PI), ECF No. [6];
• Defendant United States Postal Service’s Opposition to Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction and Motion to Dismiss Plaintiff’s
Complaint (“USPS Opp’n), ECF No. [13]; and
• Intervenor American Postal Workers Union’s Memorandum of Law in Opposition to
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (“Union
Opp’n), ECF No. [11]; and
• Plaintiff’s Reply (“Pl.’s Reply”), ECF No. [16].
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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Motion for Temporary Restraining Order and Preliminary Injunction on the merits, as it lacks the
authority to grant such relief.
Accordingly, the Court shall DISMISS this action in its entirety as follows: Plaintiff’s
claims are hereby dismissed WITH PREJUDICE in this court for lack of subject matter
jurisdiction under the Contract Disputes Act; on this record, Plaintiff’s claims as to contracts held
by contractors who are not members of Plaintiff Association are dismissed WITH PREJUDICE
for lack of standing; Plaintiff’s claims, however, are dismissed WITHOUT PREJUDICE, insofar
as Plaintiff shall not be barred by this Order from seeking relief in the proper forum should
Plaintiff be able to establish standing in the future if its claims become ripe for adjudication; and
finally the Court shall DENY WITH PREJUDICE in this court Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction, but Plaintiff shall not be barred by this Order from
seeking such relief in the appropriate forum.
I. BACKGROUND
Because Plaintiff’s claims arise out of the Postal Service’s initial considerations of how it
will implement the Arbitration Award, the Court shall only briefly set out the history that led up
to the Arbitration Award. It is important, nonetheless, to begin with the general framework of the
Postal Service’s relationship with the two separate groups that provide mail transportation
services, background facts upon which both parties agree.
Throughout its history, the Postal Service has relied upon both private contractors and
postal employees to fulfill its mission of delivering the mail. Routes serviced by private
contractors are called Highway Contract Routes (“HCR”), and Plaintiff is an association that
represents certain HCR contract holders. Corr. Compl. ¶¶ 4, 11. Routes serviced by postal
employees are referred to as Postal Vehicle Service (“PVS”) routes. Corr. Compl. ¶ 12. The
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Postal Reorganization Act (“PRA” or “Act”) specifically provides for HCR contracts,
authorizing the Postal Service to obtain mail transportation services “by contract from any
person or carrier . . . under such terms and conditions as it deems appropriate.” 39 U.S.C. §
5005(a)(3). The Act further provides that such HCR contracts are to be awarded for a term no
longer than four years (unless deemed “advisable or appropriate” by the Postal Service) and only
“after advertising a sufficient time previously for proposals” to allow for a competitive bidding
process. Id. at § 5005(b)(1). Furthermore, in determining whether to service a particular route by
HCR or PVS, the Postal Service “shall use the mode of transportation which best serves the
public interest, due consideration being given to the cost of the transportation service under each
mode.” Id. at § 5005(c). The standard terms incorporated into HCR contracts, including those
implicated in this matter, contain provisions that allow for termination for convenience or
termination upon notice. See Corr. Compl. ¶ 25. See also USPS Opp’n at 3; Id. at Ex. 2, Att. A
*17; Id. at Ex. 2, Att. B *28; Id. at Ex. 2, Att. E *30; Id. at Ex. 2, Att. F *27. On the record before
the Court, no contracts addressed by the Arbitration Award require the Postal Service to provide
cause before terminating an HCR contract. Rather, as long as the Postal Service provides the
required notice, which the parties submit is typically a period of sixty days, it is permitted to
exercise its bargained-for right under the contract to terminate an HCR contract without
indemnification or penalty. See Pl. Mot. TRO & PI at 15; Pl. Reply at 14.
Drivers on PVS routes are members of the American Postal Workers Union, Corr.
Compl. ¶ 12, and their labor relationship with the Postal Service is governed by the Collective
Bargaining Agreement, entered into by the Union and the Postal Service and referred to as the
National Agreement. See Union Opp’n, Ex.1. The National Agreement includes provisions by
which the Postal Service must abide—in addition to the statutory provisions of the Postal
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Reorganization Act—when determining whether to designate routes for service by HCR
contracts or PVS. Article 32.2.A of the National Agreement echoes § 5005(c) of the Postal
Reorganization Act and reads:
The American Postal Workers Union, AFL-CIO, and the United States Postal
Service recognize the importance of service to the public and cost to the Postal
Service in selecting the proper mode for the highway movement of mail. In
selecting the means to provide such transportation the Postal Service will give due
consideration to public interest, cost, efficiency, availability of equipment, and
qualification of employees.
Arbitration Award at *4. The National Agreement also stands to assure the Union an opportunity
to participate in the bidding process before the Postal Service awards private contracts through
its “Notice Requirements,” set out in Article 32.2.B and C. See Arbitration Award at *4-5. Under
these provisions, the Postal Service must provide the Union, at the National level, with at least
sixty days’ notice and specified information before renewing or installing a new HCR contract
for any route; during that period, the Union has a guaranteed opportunity to submit a bid for the
particular route and participate in a meeting with the Postal Service to discuss the route. Id. If the
Union requests a meeting regarding a route that the Postal Service is considering contracting out
for HCR service, the National Agreement unambiguously provides that “[a]t no time will the
subject highway contract(s) for which a meeting has been requested be awarded prior to the
actual meeting.” Id. at *5 (quoting National Agreement, Article 32.2.B).
In 2011, the Union filed a grievance pursuant to the National Agreement, seeking
adjudication of its claims of widespread violation of the Notice Requirements by the Postal
Service. The arbitrator found—as alleged by the Union and not disputed by the Postal Service—
that “during 2010 and in subsequent years, [the Postal Service] engaged in wholesale and
repeated violations of its obligations not to award HCR contract[s]” before providing the Union
with notice and an opportunity to submit a competing bid. Arbitration Award at *16. Nor did the
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Postal Service “offer[ ] an explanation for why it failed to comply with Article 32.2.B or to take
effective corrective action even after the filing of this National grievance in 2011.” Id. at *16.
Furthermore, the arbitrator found unpersuasive the Postal Service’s argument that because it
ultimately provided the Union with the notice and information required, albeit after the HCR
contracts had been awarded, the Union was nonetheless given an adequate opportunity to submit
bids for these routes. The arbitrator concluded, rather, that “discussion and review and
consideration by the Postal Service of the factors in Article 32.2.A after a service contract has
been let cannot be presumed to be equivalent to the procedure the National Agreement provides
for and, critically, is not what the parties bargained for.” Id. at *17 (emphasis in original). The
arbitrator further noted that the Postal Service’s violation of its contractual obligations under the
National Agreement “is not limited to the 212 cited violations 3 that occurred in 2010.” Id. at *19.
Furthermore, the Postal Service’s repeated and willful disregard of the Notice Requirements was
not, in the arbitrator’s view, mitigated by his finding that “there is little likelihood, as a general
matter, that even if the Postal Service had provided timely notice and otherwise followed the
procedures mandated by Article 32.2.B the Postal Service would have retrieved the HCR work at
issue for performance by the bargaining unit rather than renewing the contracts.” Id. at *18.
In the Arbitration Award, issued August 18, 2016, the arbitrator characterized the Postal
Service’s notice violation as “extraordinary,” demonstrating “widespread and repeated disregard
for the requirement of timely notice,” and requiring a remedy “related to and proportional to the
harm—as best it can be determined—to the Union and the bargaining unit.” Id. at *17-18. The
arbitrator determined that a mere cease and desist order was indeed necessary, but alone, would
3
By the time the Arbitration Award was issued, only 110 of the original 212 contracts were still
operative. Since then, the number has further diminished to 102. See Arbitration Award at *19;
Corr. Compl. ¶ 1.
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be inadequate. Id. at *17. On the other hand, he determined that to award the Union the money
damages that it sought would not be “appropriate or justified.” Id. at *19. Rather, the arbitrator
imposed a multi-part award, beginning with imposing a cease and desist order “directing the
Postal Service to comply with the notice and procedural provisions of Article 32.2.B before it
awards an HCR contract.” Id. at *19, 20. The Award further orders that:
(1) Within six months of the date of this Award (unless otherwise agreed), the
Postal Service shall convert 110 (or whatever number there continue to be)
disputed routes remaining in service (out of the 212 cited violations) to PVS
service for a four-year period.
(2) By agreement, the parties may substitute other route(s) to be converted to PVS
service pursuant to this order based on particular circumstances.
(3) I retain jurisdiction to resolve any matters relating to implementation of this
remedy.
Id. at *20. Two aspects of this remedy are of particular import to the Court’s consideration of
Plaintiff’s claims and request that this Court enjoin the Postal Service from taking any action to
implement it.
First, the remedy is most appropriately understood as ordering rescission of the HCR
contracts that were improperly awarded, and second, the remedy provides the Postal Service
wide latitude in determining how best to comply with the order. 4 The Award affords to the Postal
Service flexibility in determining what routes are best suited to conversion from HCR to PVS
routes; it does not require that the 110 routes identified in the grievance that remained in service
be converted, but rather required that that number of routes be converted to PVS routes.
Furthermore, the parties may extend the deadline for conversion upon agreement, and may bring
4
In the Court’s Minute Order of December 7, 2016, in this matter, it asked the parties to address
whether either took the position that this Arbitration Award should be construed as a sanction.
Just as all other requests for briefing by the Court, this question was not meant to indicate to the
parties that the Court was inclined to construe the Award as such. Having further considered the
briefing by the parties, the record in its entirety, and the relevant legal authorities, the Court does
not view the Award as a sanction.
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the matter back to the arbitrator for resolution of any issues, as necessary. This Award restores
the Postal Service and the Union to status quo ante, affording the Union its bargained-for
opportunity to bid for a route before an HCR contract has already been awarded. Rather than
rigidly require that the particular HCR routes before the arbitrator be converted, the Award
implicitly acknowledges that conversion of some or all of these routes might not be feasible or
prudent and contemplates negotiation between the Postal Service and the Union in order to both
redress the harms to the Union and allow for the efficient and appropriate transport of the mail.
The flexibility of this award is critical. It affords the Postal Service an opportunity to examine its
route assignments and design the proper combination of HCR and PVS routes that best serves
the public interest. Rather than undertake this complex analysis, the Arbitration Award rather
presumes that the Postal Service will comply with the requirements of § 5005 of the Postal
Reorganization Act and the related provisions of the National Agreement.
In the approximately four months that have elapsed since the issuance of the Arbitration
Award, the Postal Service has taken no final actions to implement the award. The Postal Service
chose not to seek to vacate the Arbitration Award. Pl. Mot. TRO & PI, Ex. 1, Att. F (“Marshall
Letter”). The Postal Service provisionally identified 102 HCR routes under consideration for
termination, a list of which it shared with Plaintiff. Pl. Mot. TRO & PI, Ex. 1, ¶15 (“Maraney
Decl.”). Among the contracts provisionally identified, twenty-seven are held by members of
Plaintiff Association. Id. ¶ 16. The Postal Service, however, has not finalized its determination of
what HCR routes will be converted; rather, it “has determined that approximately half of the
routes on the list may not [be] feasible to convert to PVS. The status of these routes and whether
the routes will be substituted with others are currently under negotiation with the APWU.” USPS
Opp’n, Ex 1, ¶ 11 (“Dean Decl.”). Whether members of Plaintiff Association hold the contracts
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for any of the routes still under consideration for termination cannot be ascertained from the
record before the Court. Nor is the record developed as to the factors that the Postal Service is
considering in assessing which contracts may be terminated, but it is presumed, and the
Arbitration Award contemplates, that the Postal Reorganization Act’s § 5005 considerations will
be applied.
In sum, as of this date negotiations between the Postal Service and the Union appear to be
ongoing. It appears that no HCR contracts have yet been identified for certain termination, and
the Postal Service has not sent any notices of termination to any HCR contractors (and, therefore,
no members of Plaintiff Organization have received notice that their contracts will be
terminated). Finally, as of this date, no HCR contracts have been terminated for the purposes of
conversion to PVS service.
II. LEGAL STANDARD
When a motion to dismiss a complaint under Rule 12(b)(1) is filed, a federal court is
required to ensure that it has “the ‘statutory or constitutional power to adjudicate [the] case[.]’”
Morrow v. United States, 723 F. Supp. 2d 71, 77 (D.D.C. 2010) (emphasis omitted) (quoting
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)). “Federal courts are courts of
limited jurisdiction” and can adjudicate only those cases or controversies entrusted to them by
the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “In an attempt to give meaning to Article III’s case-or-controversy requirement,
the courts have developed a series of principles termed ‘justiciability doctrines,’” including the
doctrines of standing and ripeness.” Nat’l Treasury Emps. Union v. United States, 101 F.3d
1423, 1427 (D.C. Cir. 1996) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). The Court begins
with the presumption that it does not have subject matter jurisdiction over a case, id., and
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Plaintiff bears the burden of establishing otherwise, Moms Against Mercury v. FDA, 483 F.3d
824, 828 (D.C. Cir. 2007). Furthermore, “Courts may ‘choose among threshold grounds for
denying audience to a case on the merits.’” Fisher-Cal Indus., Inc. v. U.S., 747 F.3d 899, 903
(D.C. Cir. 2014) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999)).
In determining whether there is jurisdiction, the Court may “consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion
v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal citation and quotation marks omitted).
“Although a court must accept as true all factual allegations contained in the complaint when
reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations in the complaint
“will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for
failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170
(D.D.C. 2007) (internal citation and quotation marks omitted).
III. DISCUSSION
A. Justiciability
“Article III of the Constitution limits the ‘judicial power’ of the United States to the
resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “In order to establish the existence
of a case or controversy within the meaning of Article III, [a] party must meet certain
constitutional minima,” including “the requirement that . . . it has standing to bring the action.”
Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002). The “irreducible constitutional minimum”
of standing requires: (1) an injury in fact; (2) causation; and (3) redressability. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). Plaintiff has failed to meet its burden in establishing that
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it has met the minimum requirements of standing for two independent reasons: first, Plaintiff
does not have representational standing with respect to the majority of contracts that it seeks to
bar the Postal Service from terminating in this action; additionally, Plaintiff has not established
injury in fact, as the harms it seeks to prevent are still too speculative, rendering the claims
unripe for adjudication. For the reasons set out infra, the Court accordingly finds that Plaintiff’s
claims are not justiciable and the Court therefore lacks subject matter jurisdiction over them.
1. Representational Standing of Plaintiff Association
Plaintiff brings this action on behalf of its member contractors, whose HCR contracts, it
alleges, have been identified for termination by the Postal Service. Plaintiff is a non-profit
corporation that “represents and advocates for its members, who are individuals and private
companies that provide mail transportation services to the Postal Service under Highway
Contract Route (“HCR”) contracts.” Corr. Compl. ¶ 4. In this action, Plaintiff asks this Court to
enjoin the Postal Service from “taking any action to implement the portion of the August 18,
2016[,] arbitration award that directs the Postal Service to Terminate up to 110 highway mail
transportation routes currently served by contractors so that the routes may be served by Postal
Service employees,” Pl. Mot. for TRO & PI at 1. Among the contracts that Plaintiff seeks to
protect from termination are the 102 HCR contracts that the Postal Service provisionally
identified. Corr. Compl. ¶ 1. See also Maraney Decl. ¶ 15; Pl. Mot. TRO & PI, Ex. 1, Att. C.
Plaintiff further alleges that the termination of these contracts will impact “more than 70
individuals and small businesses,” which “will lose revenue totaling more than $57 million
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annually.” Pl. Mot. TRO & PI at 3. Plaintiff conclusorily asserts representational standing to
bring this action on behalf of its members. 5 Corr. Compl. ¶ 5.
While not specifically addressed by either Defendant or Intervenor, the Court examines at
the outset Plaintiff’s claim of representational standing. The standing requirement applies to all
of the claims that Plaintiff brings before this Court, and “[t]ruly jurisdictional rules ‘govern “a
court’s adjudicatory authority,”’ obligating courts to ‘consider sua sponte issues that the parties
have disclaimed or have not presented.’” United States ex rel. Heath v. AT & T, Inc., 791 F.3d
112, 120 (D.C. Cir. 2015) (quoting Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641, 648 (2012)).
See also Dominguez v. UAL Corporation, 666 F.3d 1359, 1361-62 (D.C. Cir. 2012).
It is well settled that an association or organization may bring claims on behalf of its
members if it meets certain threshold requirements (see discussion infra), but here Plaintiff’s
claims go beyond those of its members, and Plaintiff attempts to bring before this Court claims
related to contracts held by non-member HCR contractors. Of these 102 routes that the Postal
Service has provisionally identified for termination, only twenty-seven are serviced by
contractors who are members of Plaintiff Association. Maraney Decl. ¶ 16. See also Pl. Mot.
TRO & PI, Ex. 1, Att. D. Therefore, although Plaintiff asks the Court to enjoin the Postal Service
from terminating all 102 provisionally identified contracts, seventy-five of those contracts are
held by contractors who are not members of the Plaintiff Association.
5
Plaintiff does not assert organizational standing and has not alleged “such a personal stake in
the outcome of the controversy as to warrant the invocation of federal jurisdiction; that is . . . that
it has suffered injury in fact, including [s]uch concrete and demonstrable injury to the
organization’s activities—with [a] consequent drain on the organization’s resources—
constitut[ing] . . . more than simply a setback to the organization’s abstract social interests.”
Nat’l Ass’n of Home Builders v. E.P.A., 667 F.3d 6, 11 (D.C. Cir. 2011) (internal citation and
quotation marks omitted) (alterations in original). Accordingly, the Court shall not address this
alternate basis for standing.
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In order to establish representational standing, an organization must show that “‘(a) its
members would otherwise have standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.’” Nat’l Ass’n of Home
Builders v. E.P.A., 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting Ass’n of Flight Attendants-CWA v.
U.S. Dep’t of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (citations omitted)). See also Intn’l
Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274,
281-82 (1986) (reciting and reaffirming the above-three part “Hunt test,” which draws its name
from Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343 (1997)). The Court shall
reserve discussion of the first condition of member standing for its examination of injury in fact
and ripeness, infra. Where Plaintiff seeks to protect the HCR contracts of its members from
termination, the Court finds that this interest is in fact germane to Plaintiff’s purpose and that
neither the claims themselves nor the relief requested requires the participation of the individual
members in the lawsuit, whose interests, the Court finds, are adequately represented by Plaintiff
organization.
Plaintiff cannot, however, establish representational standing for the holders of HCR
contracts that are not members of the National Star Route Mail Contractors Association. The
Court will not speculate as to why these non-member contract holders are not a part of Plaintiff
Association or why they have not joined in this action with Plaintiff. Furthermore, Plaintiff has
provided the Court with no basis upon which to conclude that it will “be able to represent
adequately the interests” of these non-member contract holders. Brock, 477 U.S. at 290.
Accordingly, the Court concludes that Plaintiff lacks standing with respect to the seventy-five
14
contracts provisionally identified by the Postal Service for termination and held by non-member
contractors.
2. Injury in Fact and Ripeness
“Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy.” Spokeo, Inc. v. Robins, — U.S. —, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016). To establish standing, Plaintiff bears the burden of demonstrating that it “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan, 504 U.S. at 560-
61). At the pleading stage, this requires Plaintiff to “‘clearly . . . allege facts demonstrating’
each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
The critical question in this case centers around injury in fact, which is the “‘[f]irst and
foremost’” element of standing. Spokeo, 136 S. Ct. at 1547 (quoting Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 103 (1998) (alteration in original)). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at
1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the
plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1). For an
injury to be “concrete,” it “must be ‘de facto’; that is, it must actually exist.” Id. (quoting Black’s
Law Dictionary 479 (9th ed. 2009)). “Concrete” is not “necessarily synonymous with
‘tangible,’” and can include the “risk of real harm.” Id. at 1549. The standing analysis of a claim
based on a “risk of real harm” is, of course, closely linked to the Court’s ripeness inquiry. A
claim is not ripe for adjudication “if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” In re Aiken County, 645 F.3d 428, 434 (D.C. Cir.
15
2011) (quoting Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir. 2007) (internal citation and quotation
marks omitted).
Plaintiff has not established that the risk of harm to its member contractors by the
termination of their contracts is “actual or imminent, not conjectural or hypothetical.” Spokeo,
136 S. Ct. at 1548 (internal citation and quotation marks omitted). The record before the Court
“‘fall[s] short of establishing certainly impending dangers for any particular member of the
[Plaintiff’s] association[ ].’” Nat’l Ass’n of Home Builders v. E.P.A., 667 F.3d at 15 (quoting Am.
Chem. Council v. Dep’t of Transp., 468 F.3d 810, 819 (D.C. Cir. 2006)). Examination of the
facts, even as they have developed in the short period since Plaintiff filed this action, reveals that
“deferring consideration might eliminate the need for review altogether.” Chamber of Commerce
v. Reich, 57 F.3d 1099, 1100 (D.C. Cir. 1995).
Plaintiff is concerned with protecting its members 6 from early termination of their HCR
contracts by the Postal Service. The Arbitration Award, the Postal Service’s decision not to seek
to vacate the Award, 7 and the provisional identification by the Postal Service of 102 HCR routes
“under consideration for conversion to PVS service” 8 underlie Plaintiff’s concern. Although
these considerations indeed show that the risk of injury to Plaintiff’s members is not entirely
abstract, Plaintiff’s request is nonetheless premature. Plaintiff has not asked this court to enjoin
the Postal Service from following through on the termination of HCR contracts for which it has
already sent termination notices, but rather to seeks to prevent the Postal Service “from taking
6
Having already found, supra, that Plaintiff lacks standing as to the non-member contractors, the
Court shall confine its analysis to the twenty-seven contracts held by its members over which
Plaintiff could assert representational standing if the individual members were able to establish
standing.
7
Marshall Letter.
8
Dean Decl. ¶ 11; Pl. Mot. TRO & PI, Ex. 1, Att. C.
16
any action to implement the portion of the August 18, 2016[,] arbitration award that directs the
Postal Service to Terminate up to 110 highway mail transportation routes currently served by
contractors so that the routes may be served by Postal Service employees,” Pl. Mot. for TRO &
PI at 1. This request stands squarely at odds with the “basic rationale of the ripeness doctrine[,
which] ‘is to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to protect the
agencies from judicial interference until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.’” In re Aiken County, 645 F.3d at 433
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
On the record before this Court, it is ultimately uncertain whether the contracts held by
any of Plaintiff’s members will be terminated by the Postal Service. The language of the
Arbitration Award itself and the December 7, 2016, Declaration of Rickey R. Dean, the Contract
Administrator for the Postal Service for the National Agreement with the Union, lead the Court
to conclude that the risk of harm to Plaintiff is no more than conjectural at this time. As
discussed supra, the Arbitration Award provides the Postal Service with wide latitude to
negotiate with the Union, to apply the Postal Reorganization Act’s § 5005 public-interest
analysis to identify which routes are best suited for conversion, to extend the timeframe for
compliance with the Award, and to come back to the arbitrator to revisit the remedy if necessary.
Arbitration Award at *20. Accordingly, the Postal Service has entered into negotiations with the
Union “to determine the number of HCR routes that will ultimately be converted to PVS and
which HCR Routes are most appropriate for conversion to PVS.” Dean Decl. ¶ 10. Furthermore,
Plaintiff’s allegation that without action by this Court, the Postal Service will terminate the 102
HCR routes provisionally identified for termination by the Postal Service as indicated in its
17
October 18, 2016, letter 9 has already been shown to be incorrect. Since the creation of this list,
the Postal Service “has determined that approximately half of the routes on the list may not [be]
feasible to convert to PVS. The status of these routes and whether the routes will be substituted
with others are currently under negotiation with the APWU.” Dean Decl. ¶ 11. To be sure, it is
entirely possible that some of the “approximately half of the routes” that remain under
consideration for conversion are currently served by HCR contractors who are members of
Plaintiff Association, but it is similarly possible that all twenty-seven routes held by members of
Plaintiff Association have now been deemed to be unsuitable for conversion, and, of course, it is
possible that the assessment is somewhere in between. This uncertainty as to whether any
members of Plaintiff Association will ultimately suffer injury requires this Court to find that this
injury is not sufficiently concrete to establish standing. Furthermore, in light of the continuing
negotiations and uncertainty as to what routes are most appropriate for conversion, the
imminence of the terminations has also been attenuated: “[i]t is unlikely that the Postal Service
will be able to issue termination notices for many (if not all) of the disputed HCR contracts
before December 19, 2016.” Id. ¶ 13.
Plaintiff misreads the import of these factual developments in two ways relevant to the
Court’s analysis of the justiciability of its claims. Citing the Dean Declaration, Plaintiff asserts
“[t]he Postal Service’s papers show that it has not made a new § 5005(c) determination to justify
the planned conversion of HCR routes to PVS.” Pl. Reply at 2. However, the Postal Service has
not yet made any determination as to possible conversion of HCR routes, but has continued its
assessment, and the Court presumes that this assessment has included § 5005 considerations.
Plaintiff further responds, “Fortunately, the Postal Service’s opposition states it is unlikely to
9
Corr. Compl. ¶ 15.
18
issue termination notices for many of the contracts in issue before December 19, 2016 . . . so the
Court may issue injunctive relief that preserves the status quo.” Pl. Reply at 12. This possible
postponement of the issuance of termination notices, however, introduces another element of
uncertainty into the Court’s analysis. The imminence of the issuance of termination notices (if
their issuance rather than termination itself is even the relevant triggering event, a question the
Court need not reach) is also in question. This uncertainty precludes a finding that the Plaintiff
has met its burden in establishing standing.
B. Contract Disputes Act
Even if Plaintiff’s claims satisfied the standing and ripeness requirements, the Court
would still lack jurisdiction over this matter. Under the Contract Disputes Act, 41 U.S.C. § 7101
et seq. (previously codified at 41 U.S.C. § 601 et seq.), the Court of Federal Claims has exclusive
jurisdiction over claims “founded upon an [ ] express or implied contract with the United States.”
Ingersoll-Rand Co. v. U.S., 780 F.2d 74, 76 (D.C. Cir. 1985) (alteration in original). Like many
cases where the federal district court’s jurisdiction is challenged as precluded by the CDA, the
determination of whether jurisdiction lies with the district court or in the Court of Federal Claims
centers in this case around the question of whether the essential nature of the case is contractual.
Although Plaintiff vigorously denies that its claims are essentially contractual, it implicitly
concedes that if they are indeed characterized as such, exclusive jurisdiction over this action is
vested in the Court of Federal Claims. Pl.’s Reply at 3. The Court concludes that Plaintiff’s
claims do indeed sound in contract and are subject to the Contract Disputes Act.
It is well settled that the Government has waived its immunity from suit against the
Postal Service. The Postal Service is an “independent establishment” of the executive branch, 39
U.S.C. § 201, and the “sue and be sued” clause of the Postal Reorganization Act, waives the
19
Postal Service’s immunity from suit. 39 U.S.C. § 401(1). See U.S. Postal Serv. v. Flamingo
Indus. (USA) Ltd., 540 U.S. 736, 744 (2004) (although finding ultimately that the Postal Service
was not subject to the Sherman Act, holding that “[t]he sue-and-be-sued clause waives immunity,
and makes the Postal Service amenable to suit, as well as to the incidents of judicial process”).
The statute further provides that “except as otherwise provided in this title, the United States
district courts shall have original but not exclusive jurisdiction over all actions brought by or
against the Postal Service.” 39 U.S.C. § 409(a). The question before this Court, then, is whether
these claims raised by Plaintiff are among those over which the district courts have original
jurisdiction.
Although the Postal Reorganization Act stands as a general grant of jurisdiction to the
district courts over matters brought by or against the Postal Service, the Contract Disputes Act is
“the paradigm of a ‘precisely drawn, detailed statute’ that preempts more general jurisdictional
provisions.” A & S Council Oil Co., Inc. v. Lader, 56 F.3d 234, 241 (D.C. Cir. 1995) (quoting
Brown v. GSA, 425 U.S. 820, 834 (1976)). Accordingly, the Court of Appeals for the D.C. Circuit
has recognized that the jurisdiction of the district courts is circumscribed by the Contract
Disputes Act: “[W]e must implement the congressional intent to provide a single, uniquely
qualified forum for the resolution of contractual disputes.” Ingersoll-Rand, 780 F.2d at 74 (citing
with approval the district court’s dismissal of a breach of contract action against the Postal
Service, having concluded that “the Contract Disputes Act pre-empts whatever jurisdiction this
Court had in contract disputes with the Postal Service”. Prefab Products v. U.S. Postal Serv., 600
F. Supp. 89, 91-92 (S.D. Fla. 1984)). The court subsequently further explained, referring to and
quoting its text, that the Contract Disputes Act:
purports to provide a final and exclusive resolution of all disputes arising from
government contracts covered by the statute. “All claims by a contractor against
20
the government relating to a contract” covered by the CDA must be submitted
first to the contracting officer for a decision. The contracting officer’s decision on
the claim “shall be final and conclusive and not subject to review by any forum,
tribunal, or Government agency, unless an appeal or suit is timely commenced as
authorized by [the statute]. Such appeals may be made only to the appropriate
agency board of contract appeals or directly to the Court of Claims, but either
way, the next appeal lies only to the Federal Circuit.
A & S Council Oil, 56 F.3d at 241 (citations omitted). See also Menominee Indian Tribe of Wisc.
v. United States, 614 F.3d 519, 521 (D.C. Cir. 2010) (“The Contract Disputes Act of 1978 . . .
established a comprehensive framework for resolving contract disputes between executive
branch agencies and government contractors.”). Accordingly, where the claims arise out of a
contract governed by the Contract Disputes Act, “the CDA limits adjudication of [that] dispute to
the Claims Court.” 10 Ingersoll-Rand, 780 F.2d at 76.
The jurisdictional bar of the Contract Disputes Act applies to claims arising from
contracts made thereunder by the Postal Service. In Anselma Crossing, L.P. v. U.S. Postal Serv.,
the Court of Appeals for the Third Circuit (“Third Circuit”) carefully examined the jurisdictional
impact of the 2006 revisions to the Contract Disputes Act on cases involving claims relating to
contracts with the Postal Service. 637 F.3d 238, 242-46 (3rd Cir. 2011). The court noted the
ambiguity created by the amendments that simultaneously removed the Postal Service from the
definition of “executive agency” within the statute while also expressly adding jurisdictional
provisions governing the Postal Service Board of Contract Appeals. Id. at 244. See 41 U.S.C. §
7101(8) (previously codified at 41 U.S.C. § 601)(2)) (defining “executive agency”); 41 U.S.C. §
7105(e)(1)(C) (previously codified at 41 U.S.C. § 607(c)) (articulating the jurisdiction of the
Postal Service Board of Contract Appeals). The court, however, went on to explain that it was
10
The “Claims Court,” was renamed “Court of Federal Claims” by the Federal Courts
Administration Act of 1992. PL 102–572, Title IX, §902 October 29, 1992, 106 Stat 4506.
21
unnecessary to resolve this ambiguity, finding it conclusive that the Postal Reorganization Act
“permits the USPS to adopt the CDA via its own internal regulations, see 39 U.S.C. § 410(a), and
it has done so in 39 C.F.R. § 601.109.” Anselma Crossing, 637 F.3d at 244. The court, therefore,
concluded that the revisions to the Contract Disputes Act did not alter its applicability to
contracts made by the Postal Service.
This Court finds the thorough and considered reasoning of the Third Circuit persuasive;
the district court lacks jurisdiction over claims brought by or against the Postal Service related to
contracts made pursuant to the Contract Disputes Act. See Ansco, Hasler Mailing Sys., Inc. v.
U.S. Postal Serv., Case Nos. 00-1401, 00-2089, 01-804, ECF No. 95, *3 (D.D.C. Sept. 27, 2007)
(stating the general proposition that “[t]o the extent that plaintiffs’ claims are ‘related to’ a
contract within the scope of the CDA, jurisdiction over those claims lies not here but only in the
Court of Federal Claims,” but going on to find that the particular contracts were not procurement
contracts subject to the CDA); 11 Arbitraje Casa Cambio, S.A. v. U.S. Postal Serv., Case No. 02-
777, 2004 WL 3257073, at *2-3, (D.D.C. Nov. 30, 2004) (finding that the district court lacked
jurisdiction over the claims brought against the Postal Service that were essentially contractual
11
Plaintiff relies upon, but reads too much from this case, which also involved contracts with the
Postal Service. Although the court ultimately found that the Contract Disputes Act did not
deprive it of jurisdiction, the court’s jurisdiction was rooted in the particular nature of the
contracts and the particularity of the types of contracts to which the Contract Disputes Act
applies. There, the contracts were “not ones ‘for the procurement of services’” and lacked the
“hallmarks of a CDA contract.” Id. at *4 (see discussion infra for further discussion of the
hallmarks of CDA contracts). Despite the finding that the particular contracts at issue in that case
did not fall under the Contract Disputes Act, the court accepted the general proposition relevant
to the facts of this case: that “[t]o the extent that plaintiffs’ claims are ‘related to’ a contract
within the scope of the CDA, jurisdiction over those claims lies not here but only in the Court of
Federal Claims.” Id. at *3 (relying on A & S Council Oil, 56 F.3d at 240).
22
and governed by the Contract Disputes Act and accordingly transferring the case to the Court of
Federal Claims). 12
The Court must next consider whether the contracts involved in this matter are of the
nature governed by the Contract Disputes Act. By its plain language, the CDA applies to “any
express or implied contract . . . made by an executive agency for . . . the procurement of
services.” 41 U.S.C. § 7102(a)(2). Although the Court of Appeals for the Federal Circuit has
noted that this language of the CDA is “unambiguous,” it has nonetheless stated that “[t]o
determine whether the applicability of the CDA to the pleaded contracts is within the intention of
Congress, we must look to the purpose of the Act and its legislative history.” Institut Pasteur v.
United States, 814 F.2d 624, 627 (Fed. Cir. 1987). In so doing, it has identified certain
“hallmarks of a CDA contract,” to which interpreting courts then look. Ansco, ECF No. 95 at *4
(quoting Ervin & Assocs., Inc. v. United States, 44 Fed. Cl. 646, 653 (1999)). These hallmarks
include “a buyer-seller relationship” between the parties, “a competitive bidding process,” and
“the expenditure of government funds.” Ervin & Assocs., 44 Fed. Cl. at 653-54. The HCR
contracts at issue in this matter bear these hallmarks and thus fall squarely within the scope of
the Contract Disputes Act. The HCR contractors provide a service for the Postal Service,
pursuant to contracts that are to be awarded following a competitive bidding process, and
government funds pay for these services.
12
The Court of Federal Claims subsequently found that the contracts at issue were not
procurement contracts governed by the Contract Disputes Act, but rather were governed by the
related Tucker Act and thus still within the exclusive jurisdiction of the Court of Federal Claims.
79 Fed. Cl. 235, 240 (2007). This contrary finding by the Court of Federal Claims as to the
nature of the contracts at issue in that case does not, however, call into question the proposition
that claims relating to contracts under the Contract Disputes Act are within the exclusive
jurisdiction of that court.
23
Furthermore, although the Court cannot be certain which, if any, of the HCR contracts
that have been provisionally identified for termination will ultimately be terminated, the Court
has reviewed the “[e]xample Terms and Conditions that apply to the HCR Contracts”
provisionally identified for possible termination. USPS Opp’n, Ex. 2, ¶ 5 (Bridget M. Rice
Decl.). The Terms and Conditions that governed the above-described HCR contracts, each
contain a section entitled “Clause B-9 Claims and Disputes (March 2006),” which provides in
pertinent part: “This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-
613 13) (‘the Act’ or ‘CDA’). Except as provided in the Act, all disputes arising under or relating
to this contract must be resolved under this clause.” USPS Opp’n, Ex. 2-I at *18; Ex. 2-J at *16;
Ex 2-K at *16. These express provisions to the contracts make clear that they do indeed fall
within the scope of the CDA.
The Court must next address whether Plaintiff’s claims are properly construed as contract
claims arising under these CDA contracts. Although Plaintiff styles its claims as raising
questions of statutory and constitutional rights rather than as contract claims, “[c]ourts have not
hesitated to look beyond the pleadings of a case brought in district court to determine if it
involves a claim over which the Court of [Federal] Claims has exclusive jurisdiction.”
Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982). “[A] plaintiff may not avoid the
jurisdictional bar of the CDA merely by alleging violations of regulatory or statutory provisions
rather than breach of contract.” Ingersoll-Rand, 780 F.2d at 77. Rather, “the classification of a
particular action as one which is or is not ‘at its essence’ a contract action depends both on the
source of the rights upon which the plaintiff bases its claim, and upon the type of relief sought
(or appropriate).” Id. at 76 (quoting Megapulse, 672 F.2d at 968).
13
The Contract Disputes Act has been recodified at 41 U.S.C. § 7102 et seq.
24
The framework set out in Ingersoll-Rand for assessing whether an action essentially
sounds in contract for purposes of determining whether claims fall under the exclusive
jurisdiction of the Court of Federal Claims is particularly instructive here as plaintiff’s claims
and legal theories are closely analogous to those the D.C. Circuit considered in Ingersoll-Rand.
There, the plaintiff-appellant sought reinstatement of a contract with the Air Force on the
grounds that the termination of its contract violated two separate federal regulations and that
resolicitation of bids on the contract would also violate federal regulations, all in contravention
of the Administrative Procedures Act. 780 F.2d at 77. Although the plaintiff-appellant had
attempted to “cast its complaint otherwise, [the court] conclude[d] that the essential rights at
stake [t]here [were] contractual.” Id. The court looked to three “essential aspects” of the claims
before it, and the Court shall consider each aspect here as well.
First, the Court considers whether it is “possible to conceive of this dispute as entirely
contained within the terms of the contract.” Ingersoll-Rand, 780 F.2d at 78. In Ingersoll-Rand,
the Air Force had invoked the termination-for-convenience clause contained in the contract at
issue, which led the court to conclude that plaintiff-appellant “could thus challenge the
termination based solely on contract principles. . . . The question presented by the complaint
could be phrased as whether the contract forbids termination under these conditions.” Id.
(citation omitted). Similarly, the Plaintiff here anticipates that the Postal Service will invoke the
termination for convenience or termination upon notice clauses that govern the HCR contracts
before the court. See Corr. Compl. ¶ 25. See also USPS Opp’n at 3; Id. at Ex. 2, Att. A *17; Id. at
Ex. 2, Att. B *28; Id. at Ex. 2, Att. E *30; Id. at Ex. 2, Att. F *27. Accordingly, just as in
Ingersoll-Rand, Plaintiff’s claims can be entirely reframed in contract terms. “That the
termination also arguably violates certain other regulations does not transform the action into one
25
based solely on those regulations. Nor does plaintiff’s decision to allege only a violation of the
regulations change the essential character of the action.” Ingersoll-Rand, 780 F.2d at 78. Plaintiff
here alleges that for the Postal Service to implement the arbitration award, it would violate §
5005 of the Postal Reorganization Act because the arbitrator did not make a § 5005
determination regarding the HCR routes before him. This, however, mischaracterizes the nature
of the Award and the issue before this Court. The Arbitration Award presumes that the Postal
Service will conduct this analysis when deciding which contracts to terminate pursuant to its
rights under the HCR contracts. Additionally, the fact that Plaintiff here alleges both statutory
and constitutional violations 14 does not change the analysis. See id. (citing with approval J.C.
Prods., Inc. v. United States, 608 F. Supp. 92, 94 (W.D. Mich. 1984), for the proposition that
14
While the Court shall not address Plaintiff’s Fifth Amendment Due Process claim on the
merits, the Court notes that the action contemplated by the Postal Service is the early termination
of contracts, which, by their own terms to which the HCR contractors have agreed to be bound,
provide for such termination. The contemplated action would not go further and “‘bestow a
badge of disloyalty or infamy’ nor foreclose ‘other employment opportunity.’” Myers & Myers,
Inc. v. U.S. Postal Service, 527 F.2d 1252, 1258 (2d Cir. 1975) (citations omitted). Whereas the
de facto debarment from government contracting that was at issue in Myers & Myers was found
to implicate procedural rights of the contract-holders, the court explained that where, by contrast,
there is no preclusion from future contracting opportunities, there is “no deprivation of ‘liberty’
which invokes the procedural safeguards of the Due Process clause.” Id. (citations omitted).
Rather, “[a] star route contractor cannot be said to hold a statutory entitlement to contract
renewals or even a reasonable expectation that his business relationship with the Postal Service
has become permanent in nature. In fact the clear intent of [39 U.S.C. §5005] was to maintain
flexibility for the Postal Service in such arrangements by making the renewal decision a
discretionary matter.” Id. (citations omitted). Similarly, in Seaboard World Airlines, Inc. v.
Gronouski, where the Postal Service had granted plaintiff, an international air carrier, the
authority to transport certain mail items overseas, which in turn “developed into a $4 million
business during the . . . five years” preceding the Postal Service’s policy change that essentially
“deprive[d] plaintiff of substantially all of its mail revenue,” the court found that “plaintiff [did]
not have a ‘right’ to carry the mail. Plaintiff is authorized to transport mail ‘whenever required by
the Postmaster General’, 49 U.S.C. § 1371(l).” 230 F. Supp. 44, 46-48 (D.D.C. 1964). The court
did find that there, “[h]owever, the plaintiff does have a right, conferred by Congress in the
Administrative Procedure Act, to certain procedural safeguards before the Post Office can effect
a new policy which so substantially affects the relationship between the carrier and the agency.”
Id. at 47. No such exceptional considerations arise under the facts that Plaintiff presents.
26
“where plaintiff was awarded contract and government terminated for convenience, cause of
action is on the contract despite plaintiff’s allegations of statutory and constitutional violations”).
Furthermore, analysis of any termination of HCR contracts would not fall under the narrow set of
cases where interpretation of the contract “will almost inevitably require construction and
application” of specific statutory provisions over which the district court has exclusive
jurisdiction. Shaffer v. Veneman, 325 F.3d 370, 372-73 (D.C. Cir. 2003) (finding the settlement
agreement not to require statutory interpretation and distinguishing Bd. of Trs. of Hotel and Rest.
Emps. Local 25 v. Madison Hotel, 97 F.3d 1479, 1485 (D.D.C. 1996), which did turn on the
interpretation of ERISA rights that were incorporated into the settlement agreement, and over
which provisions the district court had exclusive jurisdiction).
Having found that the dispute in this case can indeed be conceived of as entirely within
the terms of the contract, the Court considers “whether the issues raised by [P]laintiff’s
complaint are within the unique expertise of the Court of [Federal] Claims.” Ingersoll-Rand, 780
F.2d at 78. As discussed supra, the substance of Plaintiff’s claims is that the Postal Service might
improperly terminate HCR contracts, which were to have been secured according to a specified
bidding. Just as in Ingersoll-Rand, therefore, this complaint “calls for knowledge of the
government contracting process. In these circumstances, we must implement the congressional
intent to provide a single, uniquely qualified forum for the resolution of contractual disputes.” Id.
Finally, just as in Ingersoll-Rand, Plaintiff is not a “frustrated bidder,” over whose “bid
protest action” this court would retain jurisdiction. Id. at 78-79 (examining and distinguishing
Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970)). This narrow class of cases
involving the government contracting process over which the district courts do retain jurisdiction
is limited to actions in which the plaintiff—who has no contract with the government—seeks a
27
declaratory judgment voiding the government award of the contract to the winning bidder. Id. By
contrast, Plaintiff here “complains of [prospective] wrongful termination of its own contract with
the government.” Id. at 79. Finding these three factors as articulated in Ingersoll-Rand similarly
conclusive as to Plaintiff’s claims and with Plaintiff having suggested no other factors for the
Court’s consideration, the Court finds that the contracts, rather than the Postal Reorganization
Act or the Fifth Amendment, are the source of the rights upon which Plaintiff bases its claims.
Megapulse, 672 F.2d at 968.
The Court, therefore, turns to an examination of the second factor in the assessment of
whether Plaintiff’s claims should be properly construed as contract claims arising under CDA
contracts: the nature of the remedy appropriate to Plaintiff’s claims. Id. at 970-71. “Where the
alleged damage is entirely due to and measured in reference to plaintiffs’ performance of a
contract, and is exclusively for money damages, plaintiffs’ claim that the wrong originated in
some statutory violation does not strip the case of its contractual character.” A & S Council Oil,
56 F.3d at 241. Although Plaintiff here seeks injunctive relief to prevent the Postal Service from
terminating HCR contracts, “plaintiff may not sidestep the restrictions of the CDA merely by
avoiding a request for damages.” Ingersoll-Rand, 780 F.2d at 79. Plaintiff’s request is merely the
preemptive (and, indeed, premature) iteration of the Ingersoll-Rand plaintiff’s request that the
district court order reinstatement of the original award of the government contract that it alleged
the government had improperly terminated. Id. at 79-80. Just as the D.C. Circuit found there that
the request amounted to a request for specific performance, the Court finds that Plaintiff’s
request here is a request for specific performance. Id. Plaintiff has made no effort to show that it
would be unable to recover an appropriate damages remedy in the Court of Federal Claims for
wrongful termination of the contract, and therefore has not shown that the relief available there
28
would be “inadequate.” Id. at 80. To the extent that Plaintiff has argued that its members will be
unable to recover for their financial losses if the contracts are terminated, this is not an argument
that the remedies available to it in the Court of Federal Claims are inadequate, but rather is
simply the consequence of the terms of the contracts to which the HCR contractors agreed.
Where contracts are terminable upon notice or for convenience, as the contracts before the court
indicate, the inability to recover payment of the full contract price following termination does not
create jurisdiction in this Court. See Corr. Compl. ¶ 25. See also USPS Opp’n at 3; Id. at Ex. 2,
Att. A *17; Id. at Ex. 2, Att. B *28; Id. at Ex. 2, Att. E *30; Id. at Ex. 2, Att. F *27. Rather, where
the claims revolve around a contract governed by the CDA “a complaint involving a request for
specific performance must be resolved by the [Court of Federal Claims]. . . . To hold that the
CDA does not apply merely because, under that scheme, plaintiff cannot receive all its requested
remedies, would intolerably upset the congressional purpose underlying the Act.” Ingersoll-
Rand, 780 F.2d at 80.
For all of the foregoing reasons, the Court finds that Plaintiff’s claims sound in contract
and are subject to the exclusive jurisdiction of the Court of Federal Claims. Because Plaintiff has
failed to establish standing in this matter, which is not yet ripe for adjudication, the Court finds
however, that it would not be in the interest of justice to, and accordingly shall not, transfer this
matter to the Court of Federal Claims. 28 U.S.C. § 1631. See Ingersoll-Rand, 780 F.2d at 80-81.
IV. CONCLUSION
Accordingly, the Court shall not reach the merits of Plaintiff’s claims. See Dominguez v.
UAL Corp., 666 F.3d at 1361 (emphasizing the critical importance of jurisdictional analysis and
the constitutional principle that where the court lacks jurisdiction over a matter, “‘the courts have
no business deciding it, or expounding the law in the course of doing so.’”) (quoting
29
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). The Court does not engage in the
typical four-part analysis of whether a temporary restraining order should issue, because the
Court lacks the authority to grant Plaintiff any such relief. Furthermore, the Court shall not opine
on whether § 5005 of the Postal Reorganization Act creates a private right of action or whether
the Norris-LaGuardia Act would bar the Court from awarding the injunctive relief requested by
Plaintiff.
For all of the foregoing reasons, the Court finds that this action does not meet the
justiciability requirements for this Court to exercise jurisdiction over the matter. Whereas
Plaintiff lacks standing to bring these claims, which are not yet ripe for adjudication, and–to the
extent that these claims may at some later time be brought–jurisdiction is vested in the United
States Court of Federal Claims.
Lacking jurisdiction over the matter, the Court GRANTS Defendant’s [14] and
Intervenor’s [15] Motion to Dismiss and DENIES Plaintiff’s [6] Motion for Temporary
Restraining Order and Preliminary Injunction as follows:
Plaintiff’s claims are hereby dismissed WITH PREJUDICE in this court for lack of
subject matter jurisdiction under the Contract Disputes Act; on this record, Plaintiff’s claims as
to contracts held by contractors who are not members of Plaintiff Association are dismissed
WITH PREJUDICE for lack of standing. Plaintiff’s claims, however, are dismissed WITHOUT
PREJUDICE, insofar as Plaintiff shall not be barred by this Order from seeking relief in the
proper forum should Plaintiff be able to establish standing in the future and if its claims become
ripe for adjudication.
30
Finally the Court shall DENY WITH PREJUDICE in this court Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction, but Plaintiff shall not be barred by this
Order from seeking such relief in the appropriate forum.
Because Plaintiff has failed to establish standing in this matter which is not yet ripe for
adjudication, the Court finds that it would not be in the interest of justice and accordingly shall
not transfer this matter to the Court of Federal Claims. 28 U.S.C. § 1631.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
31