Friedler v. General Services Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ARIEL FRIEDLER, )
)
Plaintiff, )
)
v. ) No. 15-cv-2267 (KBJ)
)
GENERAL SERVICES ADMINISTRATION, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

At all times relevant to this opinion, Plaintiff Ariel Friedler was the founder and

sole shareholder of Symplicity Corporation (“Symplicity”), a company that provides

software solutions and information-management services to colleges, universities, and

all three branches of the United States government. (See Compl., ECF No. 1, ¶¶ 6, 8.)

From 2007 until 2014, Friedler was also Symplicity’s President and CEO. (See id. ¶ 6.)

On September 4, 2015, Defendants United States General Services Administration

(“GSA”) and Maria C. Swaby, GSA’s Suspension and Debarment Official (“SDO” and,

collectively, “Defendants”), debarred Friedler from all federal contracting for nearly

four years for what appeared to be three distinct reasons. (See Letter from Maria Swaby

to Ariel Friedler (Sept. 4, 2015) (“Final Debarment Notice”), Admin. R. (“A.R.”)

1085–89.) 1 The Final Debarment Notice stated, among other things, that Friedler had

1
Defendants have submitted the administrative record in this matter in both hard copy and electronic
format. (See Notice of Filing, ECF No. 34.) In this Memorandum Opinion, the page-number citations
to materials contained in the administrative record refer to the Bates numbers that are stamped on the
submitted materials.
(1) been convicted of a crime (see id., A.R. 1085–86 (referring to his 2014 conviction

for Conspiracy to Access a Protected Computer Without Authorization, in violation of

18 U.S.C. §§ 371 and 1030)); (2) violated Swaby’s directive that he remain physically

absent from Symplicity’s offices during a period of suspension that GSA had imposed

as a result of his conviction (see id., A.R. 1086–88); and (3) breached a specific

agreement not to perform government-related work while he was suspended (see id.,

A.R. 1088–89). In the instant one-count complaint, Friedler maintains that Defendants’

decision to debar him was arbitrary, capricious, and in violation of the law under the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, because he was not given

notice of all of the grounds for his debarment and an opportunity to respond to each of

them prior to the agency’s final debarment determination. (See Compl. ¶¶ 47–49.)

Before this Court at present are the parties’ cross-motions for summary

judgment. (See Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 28; Mem. in Supp. of

Pl.’s Mot. (“Pl.’s Mem.”), ECF No. 33; Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”),

ECF No. 31.) In his motion, Friedler argues, inter alia, that his debarment was

procedurally infirm because the Final Debarment Notice included two “new causes”

(apart from his criminal conviction) that were raised for the first time in the context of

that announcement. (See Pl.’s Mem at 7, 32–34). 2 Defendants counter that Friedler was

afforded ample opportunity to oppose all of the charges against him, and that the two

additional grounds referenced in the Notice were not really new “causes” for

debarment; instead, Defendants say, these references were merely additional findings of

2
Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.

2
fact that served to extend the term of the debarment that Friedler received as a result of

his conviction. (See Defs.’ Mem. at 40–41.) New grounds aside, Defendants further

argue that, because Swaby was free to debar Friedler based on his prior conviction

alone, the debarment determination did not violate the APA. (See id. at 33–35.)

For the reasons explained below, this Court finds that Defendants relied on

Friedler’s alleged post-conviction conduct in reaching the conclusion that he should be

debarred but failed to notify him of these purported violations—a failure that is

unquestionably improper under the applicable provisions of the Federal Acquisition

Regulation (“FAR”). See 48 C.F.R. § 9.406-3. And because this Court cannot

reasonably find that Defendants would have debarred Friedler on the basis of his

criminal conviction alone, the Court cannot conclude that the agency’s error in relying

on the two additional grounds without providing notice was harmless. Therefore,

Plaintiff’s motion for summary judgment will be GRANTED, Defendants’ motion for

summary judgment will be DENIED, and the matter will be remanded to the agency for

further proceedings not inconsistent with this Memorandum Opinion. A separate Order

will follow.

I. BACKGROUND

A. Debarment Procedures Under The Federal Acquisition Regulation

According to the D.C. Circuit, “[d]ebarment is an administrative action which

excludes nonresponsible contractors from government contracting” and “effectuate[s]

the [federal government’s] policy that ‘agencies shall solicit offers from, award

contracts to, and consent to subcontracts with responsible contractors only.’” Caiola v.

Carroll, 851 F.2d 395, 397, 398 (D.C. Cir. 1988) (quoting 48 C.F.R. § 9.402(a)). Title

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48, Chapter 1 of the Code of Federal Regulations, which is known as the FAR, sets

forth the “policies and procedures governing the debarment and suspension of

contractors by agencies[.]” 48 C.F.R. § 9.400(a)(1). The FAR makes clear that,

because government contracts are awarded based on the contracting officer’s

“affirmative determination of [the prospective contractor’s] responsibility[,]” id.

§ 9.103(b), the focus of a debarring official’s inquiry is similarly on whether the

questionable contractor can demonstrate “present responsibility[.]” Id. § 9.406-1(a)

(instructing that, “if a cause for debarment exists,” the debarring official should assess

whether the contractor can demonstrate “its present responsibility and that debarment is

not necessary”).

The FAR lists certain circumstances that qualify as potential causes for the

debarment of a contractor, including (1) a conviction of, or civil judgment for, an

“offense indicating a lack of business integrity or business honesty that seriously and

directly affects [his] present responsibility[,]” id. § 9.406-2(a)(5); and (2) “any other

cause of so serious or compelling a nature that it affects [his] present responsibility[,]”

id. § 9.406-2(c). The FAR also indicates that a debarring official can take into account

various facts that demonstrate a contractor’s present responsibility notwithstanding the

existence of a cause for debarment; these considerations include whether “the

contractor brought the activity cited as a cause for debarment to the attention of the

appropriate Government agency in a timely manner”; whether “the contractor

cooperated fully with Government agencies during the investigation and any court or

administrative action”; and whether “the contractor has implemented or agreed to

implement remedial measures, including any identified by the Government.”

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Id. § 9.406-1(a). Thus, “[t]he existence of a cause for debarment . . . does not

necessarily require that the contractor be debarred[,]” id., and the FAR itself cautions

that this “serious” sanction should be “imposed only in the public interest for the

Government’s protection and not for purposes of punishment[,]” id. § 9.402(b).

Given the severity of the debarment sanction, an agency official who is

considering the debarment of a contractor must satisfy certain pre-debarment procedural

requirements that are “consistent with principles of fundamental fairness.” Id.

§ 9.406-3(b)(1). The FAR generally requires each contracting agency to “establish

procedures governing the debarment decisionmaking process[,]” id., but section 9.406-3

also lays out a particular process that an agency must follow with respect to every

contractor whose debarment is being considered. See id. § 9.406-1(a) (mandating that

the debarring official must “us[e] the procedures in [FAR] 9.406-3” to debar a

contractor for any of the established causes). Chief among these procedural

requirements is the mandate that, with respect to any and all debarment actions, “[a]

notice of proposed debarment shall be issued by the debarring official[.]” Id.

§ 9.406–3(c); see also Popal v. Fiore, No. 11-cv-801, 2011 WL 6826176, at *1 (D.D.C.

June 17, 2011) (“When debarment is being proposed, a notice must be sent to the

contractor informing it and giving the reasons why the action is being considered.”

(emphasis added)). And the FAR goes further—it specifies that the required notice of

proposed debarment “shall” advise the contractor of the following specific information:

(1) That debarment is being considered;

(2) Of the reasons for the proposed debarment in terms sufficient to put the
contractor on notice of the conduct or transaction(s) upon which it is based;

(3) Of the cause(s) relied upon under 9.406–2 for proposing debarment;

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 (4) That, within 30 days after receipt of the notice, the contractor may
submit, in person, in writing, or through a representative, information and
argument in opposition to the proposed debarment, including any additional
specific information that raises a genuine dispute over the material facts;

(5) Of the agency’s procedures governing debarment decisionmaking;

(6) Of the effect of the issuance of the notice of proposed debarment; and

(7) Of the potential effect of an actual debarment.

48 C.F.R. § 9.406-3(c). A contractor who has received the requisite notice of proposed

debarment “must be allowed to submit ‘information and argument in opposition to the

proposed debarment.’” Popal, 2011 WL 6826176, at *1 (quoting 48 C.F.R.

§ 9.406-3(b)(1)). And this opportunity is crucial, because the FAR establishes that “if a

cause for debarment exists, the contractor has the burden of demonstrating, to the

satisfaction of the debarring official, its present responsibility and that debarment is not

necessary.” 48 C.F.R. § 9.406-1(a) (emphasis added).

If there is a genuine dispute of material fact regarding a proposed debarment that

is not based on a conviction or civil judgment, the agency must afford the contractor a

hearing. See id. § 9.406-3(b)(2)(i) (describing the circumstances under which the

agency must provide “an opportunity to appear with counsel, submit documentary

evidence, present witnesses, and confront any person the agency presents”). However,

whether or not a hearing is held, the debarring official must ultimately review all

relevant evidence and make a prompt determination regarding whether or not to proceed

with the final debarment. See id. § 9.406-3(d)(2)(i) (in cases where an evidentiary

hearing is held, the debarring official reviews written findings of fact, any information

and argument submitted by the contractor, and any other information in the

administrative record); id. § 9.406-3(d)(1) (when the evidentiary hearing requirement

6
does not apply, the debarring official must base her decision on “all the information in

the administrative record, including any submissions made by the contractor”). Finally,

if the debarring official determines that final debarment is to be imposed, the contractor

must be “given prompt notice” in the form of a written statement that “[r]efer[s] to the

[earlier] notice of proposed debarment[,]” “[s]pecif[ies] the reasons for debarment[,]”

and “[s]tat[es] the period of debarment[.]” Id. § 9.406-3(e)(1).

Significantly for present purposes, the FAR also instructs that, while a debarment

“[g]enerally . . . should not exceed 3 years,” id. § 9.406-4(a)(1), “[t]he debarring

official may extend the debarment for an additional period” but only “if that official

determines that an extension is necessary to protect the Government’s interest[,]” and

“solely on the basis of . . . facts and circumstances” that are separate and distinct from

those “upon which the initial debarment action was based[,]” id. § 9.406-4(b). The

regulations also make crystal clear that the FAR’s various procedural mandates—

including the notice and hearing requirements described above—apply equally

regardless of whether an initial debarment term is being imposed or the debarring

official is issuing an ‘extended’ term of debarment. That is, although the FAR

authorizes a debarring official to extend a contractor’s debarment term for an

“additional period” under certain circumstances, the regulations specifically state that,

“[i]f debarment for an additional period is determined to be necessary, the procedures

of [FAR] 9.406-3 shall be followed to extend the debarment.” Id. (emphasis added).

B. The Facts Underlying This Case

Friedler first conceived of Symplicity in his freshman dormitory at Northwestern

University in 1996; the company is now a Delaware corporation with some 150

employees that service major contracts with private colleges and universities, all three

7
branches of the federal government, and various components of state governments.

(See Compl. ¶¶ 6–8; see also Symplicity’s Government Business, A.R. 47–49.) The

company’s growth came under Friedler’s careful stewardship. That is, Friedler is not

only Symplicity’s founder, he was also at times its sole shareholder, President, and

CEO (see Compl. ¶ 6), and over the years, he has “overs[een] nearly every aspect of

Symplicity’s operations” (id. ¶ 9). Friedler also “invented nearly every product that the

[c]ompany has sold[,]” and has been the “driving creative force behind each of” the

company’s new product offerings. (Id.) The instant case arises from the events that

preceded GSA’s decision to debar Friedler (but not Symplicity) from government

contracting, and the procedures that the agency followed when reaching its debarment

determination. The pre-debarment period spanned several years and involved many

twists and turns, the most pertinent parts of which are recounted below.

1. Friedler’s Criminal Conviction And Initial Contact With GSA

It is undisputed that over a period of four years—from October of 2007 until

October of 2011—Friedler illegally conspired with others to access password-protected

computers without authorization in order to obtain information about Symplicity’s

business competitors in furtherance of his and his company’s commercial and financial

interests. (See Statement of Facts, A.R. 144–45.) Based on suspicions of such

wrongdoing, the Federal Bureau of Investigation (“FBI”) conducted a search of

Symplicity’s Virginia headquarters and a data center hosting Symplicity’s servers in

early March of 2012 (see Letter from Fred Levy and Todd Canni to Maria Swaby (Aug.

11, 2014) (“Suspension Letter Response”), A.R. 484; see also Aff. in Supp. of Search

Warrants, A.R. 8–29), and a criminal information was subsequently filed against

Friedler (see Criminal Information, A.R. 290–98). Friedler first met with GSA

8
debarment officials in July of 2012, a few months after the FBI’s raid. During this

initial meeting, Friedler discussed the pending criminal investigation and the allegations

contained in the search warrant affidavit with Swaby and other GSA personnel (see

Suspension Letter Response, A.R. 485), but GSA opted to take no action against

Friedler or Symplicity, and the agency continued to award government contracts to the

company (see id., A.R. 490).

Two years later, in April of 2014, Friedler agreed to plead guilty to one count of

conspiracy to access a protected computer without authorization, in violation of 18

U.S.C. §§ 371 and 1030. (See Plea Agreement, A.R. 527–37; see also Criminal

Information, A.R. 290–98.) Then, a complex series of negotiations between GSA and

Friedler—on behalf of both Symplicity and himself—ensued, the goal of which was to

determine the extent to which Friedler and/or the company would be excluded from

government contracting as a result of Friedler’s criminal conviction. At one point

shortly after Friedler signed the plea agreement (but before it was formally entered in

court), Symplicity sent Swaby a letter, through its legal counsel, proposing that the

business separate itself from Friedler. (See Letter from Angela Styles to Maria Swaby

(May 12, 2014), A.R. 506–11.) Importantly, Symplicity’s letter represented that such a

severance could be accomplished by taking various formal steps, including

(1) terminating Friedler’s role as an officer and director of the company; (2) appointing

a new CEO; and (3) implementing a Voting Trust Agreement whereby Friedler would

surrender control of his shares in Symplicity to a Voting Trustee. (See id., A.R. 506,

509–10.) The letter also proposed that Symplicity enter into an Administrative

Compliance Agreement (“ACA”) with GSA, and it attached the terms of a proposed

9
contract pursuant to which Symplicity would require Friedler to remain separated from

the company for three years and prohibit Symplicity employees from seeking or taking

direction from him. (See id., A.R. 506, 510.) The proposed ACA also required

Symplicity to secure an external monitor to provide independent verification of

Friedler’s separation from the company. (See id.)

Swaby met with Friedler shortly after receiving Symplicity’s proposal, primarily

to discuss her concern that Friedler would be unable or unwilling to abide by the

proposed terms of his separation from Symplicity. (See GSA Mem. re Summ. of May

19, 2014 Meeting with Ariel Friedler, A.R. 512.) At the meeting, which took place in

May of 2014, Swaby listed several conditions that she required both Friedler and

Symplicity to meet as part of the proposed agreement, and she emphasized that if

Friedler or Symplicity violated the conditions, both would be debarred. (See id., A.R.

513.) For example, Swaby demanded that a truly independent Voting Trustee be

appointed and that Friedler and Symplicity have no communication for the duration of

any ACA. (See id.; GSA Mem. re Summ. of Nov. 6, 2014 Teleconference with

Friedler’s Att’ys, A.R. 504.) Swaby’s concerns over the Voting Trustee’s independence

and Friedler’s separation from the company carried into subsequent meetings as well; at

one point she even instructed Symplicity and Friedler to engage an Independent

Monitor in the process of appointing the trustee and verifying the trustee’s

independence. (See Mem. re Summ. of Nov. 6, 2014 Teleconference with Friedler’s

Att’ys, A.R. 504.)

2. Friedler’s Suspension And Notice Of Proposed Debarment

In the midst of Friedler’s and Swaby’s ongoing negotiations over the

appointment of an acceptable Voting Trustee and the other terms of Symplicity’s

10
proposed ACA, GSA formally suspended Friedler from doing business with the federal

government pursuant to FAR 9.407-2(a)(9) and (c), on the grounds that Friedler

“lack[ed] the present responsibility to be a Government contractor[.]” (See Letter from

Maria Swaby to Ariel Friedler (May 21, 2014) (“Suspension Letter”), A.R. 285–88.)

The only identified bases for the suspension—which took effect on the same day that

Friedler’s guilty plea was entered (see Plea Agreement, A.R. 527)—were Friedler’s

“alleged actions and the [resulting] Criminal Information filed against” him

(Suspension Letter, A.R. 287).

In his written response to the Suspension Letter, Friedler acknowledged that

Swaby intended to debar him personally for three years, but he requested an opportunity

to meet with her to avoid such debarment by demonstrating his present responsibility to

GSA. (See Suspension Letter Response, A.R. 476.) Several more months of

negotiations over the terms of Friedler’s suspension followed, after which Friedler sent

Swaby a letter and a ‘term sheet’ that outlined his proposal: in exchange for the

revocation of his suspension by GSA, a new Voting Trustee and Independent Monitor

(both subject to GSA’s approval) would be retained, and Friedler would voluntarily

abstain from federal government contracting for 12 months. (See Letter from Fred Levy

and Todd Canni to Maria Swaby (Nov. 5, 2014), A.R. 925–29.) Swaby rejected

Friedler’s proposal the very next day. (See GSA Mem. re Nov. 6, 2014 Teleconference

with Friedler’s Att’ys, A.R. 503.) She emphasized that Friedler had failed to appoint an

acceptable Voting Trustee up to that point despite his repeated promises to do so,

which, in her view, evidenced the fact that he was not yet presently responsible. (See

id., A.R. 505.) Swaby also added that she would “proceed to the next stage of the

11
process” vis-à-vis Friedler’s personal debarment (i.e., issuing a notice of proposed

debarment), and that if a new Voting Trustee was not promptly appointed, Symplicity,

too, would receive such a notice. (Id.)

A few weeks later, Swaby followed through on her threat to issue a Notice of

Proposed Debarment directed at Friedler. (See Letter from Maria Swaby to Ariel

Friedler (Nov. 26, 2014) (“Notice of Proposed Debarment”), A.R. 940–42.) The sole

basis for the proposed debarment identified in the Notice was Friedler’s criminal

conviction and the illegal actions underlying that conviction. (See id., A.R. 941.) In

this regard, the Notice specifically identified two of the FAR’s enumerated causes for

debarment: FAR 9.406-2(a)(5), which pertains to convictions for an “offense indicating

a lack of business integrity or business honesty that seriously and directly affects the

[contractor’s] present responsibility[,]” and FAR 9.406-2(c), which authorizes

debarment for “any other cause of so serious or compelling a nature that it affects the

present responsibility of the contractor[.]” (See Notice of Proposed Debarment, A.R.

941.) The Notice further advised that Friedler could “submit, either in person, or in

writing, or both, information and argument in opposition to the proposed debarment”

within 30 calendar days, and that “[t]he determination whether or not to debar [Friedler]

is discretionary and will be made on the basis of the administrative record, together

with any written materials submitted for the record by the Government or [Friedler]

during the period of proposed debarment.” (Id., A.R. 941–42).

3. The Final Debarment Notice

Friedler continued to negotiate with Swaby and GSA after the Notice of

Proposed Debarment was issued. With respect to the condition that a Voting Trust

Agreement be executed pursuant to which a Voting Trustee acceptable to Swaby would

12
be appointed (see, e.g., Email from Maria Swaby to Fred Levy (Dec. 15, 2014), A.R.

1212), Friedler eventually proposed a suitable new Voting Trustee (see Email from Fred

Levy to Maria Swaby (Mar. 25, 2015), A.R. 978), and the required Voting Trust

Agreement was executed (see Voting Trust Agreement, A.R. 981–1036). The Voting

Trust Agreement not only designated the Trustee (who received and controlled

Friedler’s voting rights with respect to all of his shares in Symplicity) and empowered

the previously-appointed Independent Monitor to ensure that the terms of the

Agreement were adhered to (see id., A.R. 985–86), it also addressed—and strictly

governed—Friedler’s contacts with Symplicity and/or its employees. In particular, the

Voting Trust Agreement specifically stated that

[d]uring the period in which Friedler is excluded or voluntarily abstains
from conducting business with the Federal Government, he is prohibited
from being present at the Corporation’s offices and from communicating
directly with the Corporation’s employees regarding the Corporation’s
business, except where the Monitor determines, in advance, that such
visits and/or communications are unrelated to the Corporation’s federal
government contracting business and consistent with the terms of this
Agreement and any Administrative Agreement that may be entered into
between GSA and Friedler. The Monitor and representatives of GSA
shall have the right to be present and/or to monitor all such visits and
oral communications.

(Id., A.R. 996 (emphasis added).) Thus, among other things, all communications

between Friedler and Symplicity employees, written or otherwise, had to be authorized

and made available for review by the Independent Monitor, and Friedler was prohibited

from “communicating directly with the Corporation’s employees” concerning contracts

or work with the federal government. (Id., A.R. 995–96.)

Once the Voting Trust Agreement and Independent Monitoring Agreement (see

Evaluation & Monitoring Services Agreement, A.R. 1037–41) were finally in place,

Friedler and GSA began negotiating the terms of one or more Administrative

13
Compliance Agreements (“ACAs”) that would resolve Friedler’s suspension, avoid his

debarment, and shield both Friedler and Symplicity from further administrative action

by GSA. For a time, it appeared as though those negotiations had borne fruit. In

August of 2015, after several weeks of negotiations, Swaby was on the brink of

executing separate ACAs with Friedler and with Symplicity, and indeed, Friedler was

specifically informed that “[t]he SDO is poised to sign these ACAs on Thursday,

August 13, 2015, as they are, with no edits.” (Email from Sarah Drabkin to Rand Allen

& Fred Levy (Aug. 11, 2015), A.R. 1050.) The draft ACA with Friedler stated that he

was “presently responsible” based on his representations and submissions to GSA, and

that GSA “agree[d] to terminate his proposed debarment” in exchange for his

“voluntary abstention from Federally-funded work, and his compliance with this

Agreement[.]” (ACA, A.R. 1050.020–021.) The ACA further concluded that the

various agreements in place between GSA, Friedler, and Symplicity would sufficiently

protect the interests of the government without requiring the exclusion of Friedler from

federal procurement or non-procurement transactions. (See id., A.R. 1050.020.) The

draft ACA with Symplicity similarly stated that “Symplicity is presently responsible”

and that “the interests of the Government will be sufficiently protected to preclude the

necessity of excluding Symplicity from Federal procurement or nonprocurement

transactions at this time.” (ACA, A.R. 1050.055.) Swaby gave Friedler and Symplicity

until the next day to sign and return the agreements. (See Email from Sarah Drabkin to

Rand Allen & Fred Levy (Aug. 11, 2015), A.R. 1050.)

The process then encountered a delay: just before the ACAs were to be

executed, Friedler’s counsel informed Swaby that Friedler was considering removing

14
Symplicity’s then-CEO (William Gerety), and also that the GSA-approved Voting

Trustee (Patrick Kavanaugh) intended to resign. (See GSA Mem. re Aug. 12, 2015

Teleconference with Fred Levy, A.R. 1052–53.) Friedler’s counsel asked Swaby to

execute the ACAs notwithstanding these developments, but Swaby determined that she

could no longer enter into the agreements, and set a September 30, 2015, deadline for

Friedler to appoint another Voting Trustee and a new CEO, if Friedler chose to replace

Gerety. (See id., A.R. 1053.)

The debarment-resolution process then hit yet another roadblock—one that

ultimately proved fatal to Friedler’s chances of avoiding debarment. During a meeting

between Swaby, the Voting Trustee (still Kavanaugh), the Independent Monitor, and

representatives of Symplicity (including Gerety) to discuss Friedler’s compliance with

the Voting Trust Agreement and Independent Monitoring Agreement, Kavanaugh

informed Swaby that Friedler “was physically back at Symplicity working[,]” and

Gerety confirmed that Friedler “was back at Symplicity and talking to employees.”

(GSA Mem. re Aug. 26, 2015 Quarterly Review Meeting with Trustee, Monitor, and

Symplicity, A.R. 1063.) Kavanaugh, Gerety, and the Monitor all added that the

Monitor had approved Friedler’s return, and that Friedler’s presence at Symplicity’s

offices was not prohibited under the suspension and debarment provisions of the FAR.

(See id.) But Swaby and GSA’s legal counsel were nonetheless purportedly

“surprise[d]” at the news, and represented that GSA had not intended that Friedler

would physically return to the office while he was still subject to suspension. (Id.)

Swaby also maintained that Friedler knew he was supposed to stay away from

Symplicity’s offices until an ACA was signed. (See id.)

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 The final nail in Friedler’s coffin came sometime during or shortly after this

meeting, when Swaby learned that Friedler had also allegedly continued to develop

federal government lines of business and track government-based revenue lines during

the suspension period. (See Statement of Material Fact (sic) Not In Genuine Dispute

(“Defs.’ Statement”), Attach. 1 to Defs.’ Mem., ECF No. 31-1, ¶ 78.) Just days later,

on September 4, 2015, Swaby issued a Final Debarment Notice to Friedler, which

debarred him until May 20, 2019, a date that was five years retroactive to Friedler’s

original suspension date of May 21, 2014. (See Final Debarment Notice, A.R.

1085–89.) See also 48 C.F.R. § 9.406-4(a)(2) (establishing that, “[i]f suspension

precedes a debarment,” the effective term of the debarment is measured from the date of

the commencement of the suspension period). 3

Like his prior Notice of Proposed Debarment, Friedler’s Final Debarment Notice

cited to FAR 9.406-2(a)(5) and (c) as the “cause[s]” for Friedler’s debarment. (Final

Debarment Notice, A.R. 1085). However, unlike the original Notice of Proposed

Debarment, which had only cited Friedler’s prior criminal conviction and the actions

underlying that conviction as the sole basis for the proposed debarment (see Notice of

Proposed Debarment, A.R. 941; see also Final Debarment Notice, A.R. 1086 (“On

November 26, 2014, you were proposed for debarment based on your actions and

criminal conviction[.]”)), the Final Debarment Notice expressly set forth three different

justifications for the ultimate debarment decision. The first of those causes was the

same as the sole cause set forth in the original Notice: Friedler’s conviction and

3
On the same day that Swaby issued the Final Debarment Notice to Friedler, she also issued a Notice
of Proposed Debarment to Symplicity. (See Pl.’s Mem. at 28 ¶ 48.)

16
underlying actions. (See Final Debarment Notice, A.R. 1086.) But the second reason

provided, which had not been part of the Notice of Proposed Debarment (and could not

have been, given that it occurred well after that Notice had issued), was the fact that

Friedler was “back physically working at Symplicity and talking to employees[,]”

which the letter characterized as

a direct, knowing, and willful violation of the terms of the Independent
Monitoring Agreement, the Voting Trust Agreement (VTA), and, most
importantly, your representation to the SDO that while you are excluded
from doing business with the Federal Government, you would abstain from
being present at Symplicity, contacting Symplicity employees, or serving
as an employee, consultant, advisor, or subject matter expert, or in any
similar role with regard to Symplicity, except as allowed by GSA.

(Id.) Third, and finally, the Final Debarment Notice stated that Friedler had “also

violated your agreement not to operate in the Government space while you were either

excluded or voluntarily abstaining from conducting businesses with the Government by

attempting to be involved in, controlling, and influencing Federal Government

business.” (Id., A.R. 1088; see also id. (citing to exchanges in which Friedler had

allegedly attempted to exert influence over Symplicity’s pursuit of new lines of

business with the federal government, including by searching the ‘FedBizOpps’

contracting service, and actively tracking government-based revenue lines).)

C. Procedural History

Friedler filed a complaint in this Court on December 30, 2015, seeking to

challenge GSA’s Final Debarment Notice. His one-count pleading claims that the final

debarment decision was arbitrary, capricious, and otherwise not in accordance with law,

in violation of the APA. (See Compl. ¶ 49.) The parties simultaneously filed motions

for summary judgment on March 21, 2016. (See Pl.’s Mot.; Defs.’ Mem.) Friedler’s

motion contends that GSA violated his constitutional and regulatory due process rights

17
by debarring him on the basis of two purported new causes—(1) his physical presence

at Symplicity’s offices, and (2) certain communications he had with the Voting

Trustee—without first giving him notice of and an opportunity to respond to those

causes. (See Pl.’s Mem. at 32–34.) Friedler further argues that the record did not

support these two new causes and they were otherwise unfounded (see id. at 35–43),

and that GSA not only failed to consider all of the relevant evidence and mitigating

factors that demonstrated his present responsibility (see id. at 44–46), but also debarred

him for punitive reasons that were unconnected to any legitimate need to protect the

government (see id. at 46–49).

GSA’s motion for summary judgment maintains that “[t]here were no ‘new

causes’ for debarment of which [Friedler] was unaware.” (Defs.’ Mem. at 41.) Instead,

says GSA, the Final Debarment Notice merely “refers to the additional finding that

[Friedler] knowingly and intentionally violated [Swaby’s] directive to remain separated

from control of [Symplicity,]” and Swaby only considered this to be “additional

evidence of [Friedler’s] lack of present responsibilit[y].” (Id.) Furthermore, GSA

argues, “[t]he actions referred to . . . were [merely] factors in the imposition of a longer

debarment period” (Defs.’ Opp’n to Pl.’s Mot. for Summ. J. (“Defs.’ Opp’n”), ECF No.

37, at 18), and because Swaby could have debarred Friedler “based solely upon his

admission of guilt and conviction” (Defs.’ Mem. at 33; see also id. at 35 (noting that

Friedler could have been debarred “immediately based upon his conviction alone”)),

Friedler’s argument that the debarment was arbitrary is manifestly meritless.

GSA also contends that the cited actions—including Friedler’s physically

working at Symplicity’s offices and participating in the development of new federal

18
government lines of business—were supported by independent evidence that Swaby

fully and fairly considered, and constituted direct violations of specific terms of the

Voting Trust Agreement and of GSA’s clear intent that Friedler remain separated from

Symplicity’s federal-government-related work during the entire term of his suspension

and possible debarment. (See id. at 36–40.) Moreover, GSA insists that, far from being

punitive, Swaby made the entirely rational and well-founded determination that

Friedler’s debarment was necessary to protect the federal government from the risks

posed by further dealings with him. (See Defs.’ Opp’n at 20–22.)

The parties’ cross-motions for summary judgment became ripe for this Court’s

review on April 25, 2016. (See Defs.’ Opp’n; Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s

Opp’n”), ECF No. 38; Reply Mem. in Supp. of Defs.’ Cross-Mot. for Summ. J. (“Defs.’

Reply”), ECF No. 39; Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”), ECF

No. 40.) This Court held a hearing on the parties’ motions on October 13, 2016.

II. LEGAL STANDARDS

A. Motions For Summary Judgment In APA Cases

As pertinent here, the APA entitles “[a] person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action . . . to judicial

review thereof.” 5 U.S.C. § 702. Thus, under the APA, a challenged agency action—

including the debarment decision of an agency’s debarring official—must be set aside if

it is found to be, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law[.]” Id. § 706(2)(A); see also Kisser v. Cisneros, 14 F.3d

615, 618 (D.C. Cir. 1994) (“Our review of [an agency]’s debarment decision is . . .

governed by the traditional ‘arbitrary and capricious’ standard set forth in the APA[.]”).

19
 There is no question that “[s]ummary judgment is the proper mechanism for

deciding, as a matter of law, whether an agency action is supported by the

administrative record and consistent with the APA standard of review.” Otay Mesa

Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35, 53 (D.D.C. 2015) (internal

quotation marks and citation omitted). But “in cases involving review of a final agency

action[,] . . . the standard set forth in [Federal Rule of Civil Procedure 56] does not

apply because of the limited role of a court in reviewing the administrative record.”

Otsuka Pharm. Co., Ltd. v. Burwell, No. 15-cv-1688, 2016 WL 4098740, at *6 (D.D.C.

July 28, 2016) (alterations in original) (internal quotation marks and citation omitted).

Specifically, in the APA context, the court eschews identifying genuine issues of

material fact, and its summary judgment inquiry is instead “limited to determining

whether the agency examined the case facts and articulated a satisfactory explanation

for its decision, including a rational connection between the facts found and the choice

made.” Burke v. EPA, 127 F. Supp. 2d 235, 238 (D.D.C. 2001) (internal quotation

marks and citation omitted). And in doing so, the court considers “only the rationale an

agency gives for its actions at the time they occur and not post hoc rationalizations by

government agency counsel[.]” Canales v. Paulson, No. 06-cv-1330, 2007 WL

2071709, at *3–4 (D.D.C. July 16, 2007) (internal quotation marks and citation

omitted); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (explaining that the reviewing court “may not supply a

reasoned basis for the agency’s action that the agency itself has not given” (internal

quotation marks and citation omitted)).

20
 Consequently, when a court assesses a motion for summary judgment in an APA

case, “[t]he entire case on review is a question of law, and only a question of law[,]”

Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993), and

the scope of the court’s review is “the whole record of the administrative action[,]”

which it reviews only to determine “whether [the agency] action was arbitrary,

capricious, and an abuse of discretion not in accordance with law[,]” Caiola, 851 F.2d

at 398 (internal quotation marks and citation omitted).

B. Degree Of Deference Afforded To An Agency’s Interpretation Of The
FAR’s Debarment Procedures

Although the APA’s arbitrary and capricious standard is ordinarily “[h]ighly

deferential” and “presumes the validity of agency action[,]” AT&T Corp. v. FCC, 220

F.3d 607, 616 (D.C. Cir. 2000), it is well established that only minimal deference is due

to GSA’s interpretation of the FAR when a court undertakes to determine whether the

agency followed that regulation’s procedural requirements prior to imposing a

debarment. To be sure, “[i]t is axiomatic that an agency’s interpretation of its own

regulations is entitled to considerable deference[,]” but the D.C. Circuit has held that

such deference is “inappropriate[,]” and that only “minimal deference” is accorded,

when what is at issue is an agency’s interpretation and application of the debarment

regulations included in FAR 9.406. Caiola, 851 F.2d at 399 (emphasis added).

The genesis of this shift in the degree of deference owed can be traced back to

the origins of the FAR as a set of regulations. The FAR itself was written and

promulgated by several federal agencies—not only GSA, but also the United States

Department of Defense and the National Aeronautics and Space Administration—and

thus, courts do not afford the deference to a GSA interpretation of the FAR that would

21
be given to GSA’s view of its own regulations. See id. (“The diffusion of the

interpretive authority among several agencies, and the possibility of inconsistent

interpretations, weaken the case for deference.”); see also Novicki v. Cook, 946 F.2d

938, 941 (D.C. Cir. 1991) (explaining that “we do not defer to the agency either—at

least with respect to its interpretation of the [FAR]—because that regulation was the

joint product of, and must be interpreted by, three different agencies”). Accordingly, in

circumstances such as those presented in the instant case, “only minimal deference is

due.” MCI Worldcom, Inc. v. Gen. Servs. Admin., 163 F. Supp. 2d 28, 31 (D.D.C.

2001).

III. ANALYSIS

Friedler argues that his debarment was arbitrary, capricious, and contrary to law

because GSA violated his constitutional and regulatory due process rights when it failed

to provide him with notice and an opportunity to be heard with respect to two purported

new causes for debarment prior to the final debarment decision. (See Pl.’s Mem. at

32–34). As explained fully below, this Court agrees with Friedler that the actions cited

in the Final Debarment Notice as “new causes” for debarment were exactly that—i.e.,

they were new, independent reasons for GSA’s ultimate decision to debar Friedler. And

this Court finds that, with respect to these two new causes, GSA disregarded the

applicable regulations that require the agency to provide notice and an opportunity to be

heard—a procedural misstep that rendered GSA’s final debarment decision arbitrary

and capricious as a matter of law.

This Court also rejects the suggestion that this procedural error was harmless

insofar as Friedler would have been debarred in any event due to his criminal

22
conviction. (See Defs.’ Mem. at 33 (noting that Swaby could have debarred Friedler

“based solely upon his admission of guilt and conviction”).) Debarment is

discretionary under the FAR, and it is not at all clear from the instant record that Swaby

would have debarred Friedler based on his criminal conviction standing alone; indeed,

the lengthy record of negotiations between GSA and Friedler regarding potentially

staving off debarment despite his conviction strongly suggests otherwise. Thus, as

discussed at length below, GSA’s debarment decision must be set aside.

A. GSA Failed To Provide Friedler With Notice And An Opportunity To
Respond To All Of The Cited Reasons For His Debarment, Which
Rendered The Agency’s Debarment Decision Arbitrary And
Capricious In Violation Of The APA

There is no dispute that GSA did not issue a specific written notice to Friedler

alerting him prior to his debarment that his alleged return to Symplicity’s offices and

his continued development of new federal government lines of business were grounds

upon which the agency was contemplating his exclusion from government contracting.

What is at issue here is whether GSA was required to notify Friedler of these potential

reasons for debarment, and provide him with an opportunity to respond to them, prior to

issuing the Final Debarment Notice, and that issue turns in significant part on the

parties’ differing interpretations of the alleged “new causes” for debarment that GSA

cited. Friedler maintains that the language in the Final Debarment Notice is

“unambiguous and controlling” (Pl.’s Reply at 5), and that, had he received the

requisite notice and opportunity to respond, he could have demonstrated to GSA that his

post-suspension conduct did not violate his agreement with the agency (see Pl.’s Opp’n

at 10–16). By contrast, GSA contends that the purported new causes were not actually

23
new reasons for debarment at all, but rather were merely “additional evidence of

[Friedler’s] lack of present responsibilit[y].” (Defs.’ Mem. at 41.)

The precise language that GSA used in the Final Debarment Notice is revisited in

detail below. It is this Court’s view that, when read in context and properly understood,

the Final Debarment Notice plainly sets forth new and independent reasons for the

agency’s decision to debar Friedler, and importantly, the final debarment notification

constituted the agency’s first notice to Friedler of those violations. Under the FAR and

GSA’s established practices, Friedler was entitled to know about and have the chance to

respond to these specific allegations before he was debarred, and per the regulations,

this was so even if these “new causes” were merely being asserted to justify an

extension of the debarment period that Swaby would have otherwise imposed based on

Friedler’s conviction alone. Thus, the agency failed to afford Friedler the required

procedural process, rendering its debarment decision with respect to him arbitrary and

capricious in violation of the APA.

1. Friedler’s Debarment Was Based On New And Independent Causes
Of Which He Had No Notice

Most of GSA’s five-page Final Debarment Notice expressly concerns “[t]he basis

for [Friedler’s] debarment[.]” (Final Debarment Notice, A.R. 1085.) Swaby’s letter

begins by referencing the Notice of Proposed Debarment that had previously been sent

to Friedler, followed by the statement that, “[a]fter careful consideration of the

information contained in the record in this matter, I have determined that cause for

debarment exists pursuant to [FAR] 9.406-2(a)(5) and 9.406-2(c)[.]” (Id.) Swaby then

proceeds to explain the “basis for [Friedler’s] debarment[,]” which, according to the

letter, “is as follows[.]” (Id.)

24
 The three brief paragraphs that next appear comprise the first cause for

debarment. Swaby notes that Friedler was suspended based on the “Criminal

Information” filed against him and his resulting “convict[ion,]” and she describes the

sentence that the United States Court for the Eastern District of Virginia imposed in

that case, along with the fact that Friedler had been “proposed for debarment based on

[his] actions and criminal conviction[.]” (Id., A.R. 1085–86.) The entire recitation

relating to Friedler’s conviction spans less than half a page of the five-page Notice.

(See id.)

Swaby’s letter then moves on to describe a series of meetings, interactions, and

agreements involving Friedler that occurred long after the November 2014 Notice of

Proposed Debarment was issued; this account is laid out in nine paragraphs that span

more than three pages of the Notice. (See id., A.R. 1086–89.) To start, Swaby

describes how she learned, during the meeting of August 26, 2015, that Friedler was

“back physically working at Symplicity and talking to employees.” (Id., A.R. 1086.)

She quotes long passages from the Independent Monitoring Agreement, the Voting

Trust Agreement, and what appear to be her notes from several meetings concerning the

negotiated restrictions on Friedler’s activity, citing them as evidence that, among other

things, Friedler was “prohibited from exerting influence and control over Symplicity”;

“GSA was never notified that [Friedler] intended to physically work at Symplicity” and

“has never allowed nor approved of” that practice; and Friedler “knew that the GSA

SDO prohibited [him] from exerting influence or control over Symplicity and physically

working at Symplicity[.]” (Id., A.R. 1087 (emphasis added).) With respect to this

particular series of accusations, the letter charges that Friedler’s “knowing, willful, and

25
intentional violation of the SDO’s directives for you to remain separated from

Symplicity and its employees and not to exert control and influence over Symplicity,

the CEO, the Trustee, or the employees while you [were] excluded from doing business

with the Government demonstrates a lack of present responsibility.” (Id., A.R. 1088

(emphasis added).) And, most tellingly, the letter further contends that “[t]hese actions

also constitute a new cause for debarment.” (Id. (emphasis added).)

Swaby’s letter does not end there. As a precursor to the final matter addressed,

the Notice says: “In addition to the above, you have also violated your agreement not

to operate in the Government space . . . by attempting to be involved in, controlling,

and influencing Federal Government business.” (Id.) As support for this contention,

the letter references a “record” that purportedly details certain “suggestions [that

Friedler] made to the Trustee” during his period of suspension regarding new

procurement opportunities with the federal government. (Id.) Notably, the Notice

specifically characterizes the impact that these purported suggestions and interactions

had on the agency’s debarment determination:

These exchanges demonstrate your attempt to be involved in and
exert management, control, and influence over Federal Government
business while you were excluded. This constitutes a new cause for
debarment under FAR 9.406-2(c) and indicates a lack of present
responsibility. This is also an aggravating factor which will extend
the term of your debarment, because it shows that you have
insufficiently mitigated the original bases for your proposed
debarment, specifically your criminal conviction and related
conduct outlined in the notice of proposed debarment[.]

(Id., A.R. 1088–89 (emphasis added).) Thus, Swaby’s Final Debarment Notice to

Friedler not only specifically describes allegedly violative conduct of Friedler’s that

26
occurred after the Notice of Proposed Debarment issued, it also specifically

characterizes this conduct as “a new cause for debarment[.]” (Id., A.R. 1088.)

In the context of the instant cross-motion for summary judgment, GSA maintains

that Friedler “makes too much of the term ‘new’ cause” as that phrase appears in the

Final Debarment Notice, and that, in fact, the modifier “new” in the phrase “new

causes” is “simply refer[ring] to the chronology of latest examples of [Friedler’s] lack

of present responsibility.” (Defs.’ Opp’n at 18) But that is not what Swaby’s letter

says. And the Court agrees with Friedler that the plain meaning of “new cause” as that

phrase repeatedly appears in the Notice (and when it is also considered in the context of

the entire administrative record) leads inexorably to the conclusion that the

non-conviction-related “causes” that the letter discusses constitute new and independent

grounds on which the debarment was based, for several reasons.

First of all, it is hard to reconcile GSA’s contention that the one and only cause

for debarment was Friedler’s criminal conviction with the fact that the Final Debarment

Notice barely mentions the conviction and primarily focuses on the additional conduct,

as explained above. (See Final Debarment Notice, A.R. 1085–89.) Additionally, even

if it was Swaby’s view that Friedler’s return to work at Symplicity’s offices and

continued meddling with Symplicity’s federal government contracting business

“demonstrate[d] a lack of present responsibility[,]” the Notice unambiguously states

that this conduct “also” qualified as a “new cause for debarment.” (Id., A.R. 1088

(emphasis added).) An internal GSA memorandum to Swaby that supported her Final

Debarment Notice is even more explicit: it plainly states that Friedler’s return to

Symplicity’s offices during the suspension period “constitutes a second cause for

27
debarment under FAR 9.40[6]-2(c).” (Post-Review Mem. for Maria Swaby, A.R.

1084.015 (emphasis added).) Thus, if Friedler’s return to Symplicity’s offices had truly

been nothing more than an additional finding of his lack of present responsibility, what

purpose did Swaby’s characterization of that conduct as a “new” or “second” cause for

debarment serve?

The Final Debarment Notice also explicitly casts in more than one light the

interactions with the Voting Trustee that GSA determined “violated [Friedler’s]

agreement not to operate in the Government space” while he was suspended: the Notice

states that this conduct “constitutes a new cause for debarment under FAR 9.406-2(c)

and indicates a lack of present responsibility.” (Final Debarment Notice, A.R. 1088

(emphasis added).) In this regard, the Notice conveys the especially damning nature of

this particular action—i.e., it qualifies simultaneously as both a cause for debarment

and a basis upon which to conclude that Friedler is not presently responsible. What is

more, the Notice also cites FAR 9.406-2(c) (debarment based on any other cause of so

serious or compelling a nature that it affects the present responsibility of the

contractor), which under the regulations is an enumerated, independent cause for

debarment that is completely separate from FAR 9.406-2(a) (debarment based on a

conviction or civil judgment). See 48 C.F.R. § 9.406-2(a), (c); see also Wellham v.

Cheney, 934 F.2d 305, 309 (11th Cir. 1991) (observing that the FAR “quite clearly

refer[s]” to each cause for debarment set forth in FAR 9.406-2(a), (b), and (c) as “a

separate and distinct ‘cause’ for debarment”). Courts have long concluded that a

“debarment based on a conviction or civil judgment” under FAR 9.406-2(a) is “not

based solely on the same facts or circumstances as a debarment based on . . . any other

28
cause of a serious or compelling nature” under FAR 9.406-2(c), Wellham, 934 F.2d at

309 (internal quotation marks and citation omitted), which leads this Court to wonder,

insofar as it references other conduct and cites FAR 9.406-2(c), how could Swaby’s

Notice reasonably be interpreted any other way?

But there’s more. The Final Debarment Notice specifies that, in addition to

being a new cause for debarment, Friedler’s interaction with the Voting Trustee is “also

an aggravating factor which will extend the term of your debarment, because it shows

that you have insufficiently mitigated the original bases for your proposed debarment,

specifically your criminal conviction and related conduct[.]” (Final Debarment Notice,

A.R. 1088–89 (emphasis added).) This aspect of the final Notice demonstrates, first,

that GSA actually treated the conduct at issue as both a new independent cause for

debarment and an aggravating factor to impose a longer term of debarment, and second,

that the original bases for debarment (i.e., Friedler’s criminal conviction and underlying

conduct) are to be distinguished from the new cause for debarment that was being

discussed therein. All of these textual clues point in one direction: toward the

conclusion that Friedler’s debarment was based on his conduct beyond and apart from

his conviction.

Undaunted, GSA attempts to bolster its tenuous position by arguing that it could

not possibly have violated Friedler’s due process rights because it is the agency’s

ordinary practice to afford due process to the contractors it debars. (See Defs.’ Reply at

10 (“The fact that GSA never sent [Friedler] a new proposal for debarment letter based

on this particular conduct, serves to underscore GSA’s position that this conduct was

considered as a continuing demonstration of [his] lack of present responsibility in this

29
final phase of the debarment process.”); see also Defs.’ Opp’n at 19 (arguing that “[i]f

GSA were truly taking exclusionary action on a ‘new cause’ for debarment, [Friedler]

would have received a proposal for debarment notice detailing the new cause for

debarment, as this is GSA’s typical practice. The record is clear that he did not.”).)

This reasoning is entirely circular, and is thus too clever by half. But the agency is at

least right about one thing: Friedler did not receive any prior notice of the “new

causes” upon which the agency purportedly based his debarment, and in this Court’s

view, that failure on the agency’s part demonstrates GSA’s violation of its

pre-debarment procedural rules rather than the inapplicability of those procedural

protections.

To be clear, this Court does find that Friedler received notice of the bases for the

proposed debarment, and that he had ample opportunity to respond to the contention

that he be disbarred on that ground. According to GSA itself, its discussions with

Friedler about the impact of the FBI’s investigation, his subsequent criminal conviction,

and the conduct underlying that conviction on his ability to continue seeking

government contracts spanned “[t]hree years[,]” involved “dozens of in-person

meetings and teleconferences[,]” and included “consideration of hundreds of pages of

documents[.]” (Defs.’ Mem. at 33.) The record supports this characterization, but the

record also demonstrates that it was just as the parties neared the finish line of their

marathon negotiations that GSA suddenly reversed course and debarred Friedler without

providing any advance notice of the two additional negotiation-related circumstances

upon which his debarment was, at least in part, ultimately based.

30
 Accordingly, this Court finds that there is no genuine issue regarding the fact

that Friedler was never “notified of the specific charges concerning [his] alleged lack of

integrity, so as to afford [him] the opportunity to respond to and attempt to persuade”

Swaby and GSA that the new “allegations [were] without merit.” Old Dominion Dairy

Prods., Inc. v. Sec’y of Def., 631 F.2d 953, 968 (D.C. Cir. 1980). And Friedler insists

that this lack of notice mattered, because the two new causes were not supported by the

evidence in the administrative record (see Pl.’s Mem. at 35–43), and because, had he

been given the chance, he would have demonstrated why GSA’s conclusions were

factually and legally deficient (see Pl.’s Reply at 7). This outcome is entirely plausible

given that, as noted above, final debarment is by no means an automatic sanction, and

apparently, “in a sizeable number of instances,” FAR 9.406-3’s due process

requirements result in “the proposed debarment not being finalized.” Popal, 2011 WL

6826176, at *1. In the instant case, however, “the reasons originally given [in the

Notice of Proposed Debarment] were later modified[,]” and thus Friedler’s chance to

present information in connection with the original sole basis for the proposed

debarment—his conviction—was “a meaningless one.” Transco Sec., Inc. of Ohio v.

Freeman, 639 F.2d 318, 324 (6th Cir. 1981).

It is for all these reasons that this Court cannot accept GSA’s argument that the

two new causes were somehow covered by the prior Notice of Proposed Debarment, or

should otherwise be characterized as not new causes at all, such that additional notice

and an opportunity to respond was not required.

31
 2. Even If The “New Causes” Were Merely “Aggravating Factors”
That Warranted Extension Of The Term Of Debarment, Friedler
Was Entitled To Advance Notice Of Them

GSA’s alternative attempt to characterize the purported new causes mentioned in

the Notice as mere aggravating factors that “justify a longer debarment period” (Defs.’

Opp’n at 18–19) is bold, but ultimately unavailing. This is because even if one assumes

arguendo that the Final Debarment Notice was really devoted to explaining why

Friedler’s not-yet-imposed term of debarment would be longer than the ordinary term,

GSA would still have been required to provide Friedler with prior notice of the reasons

for this extension, and an opportunity to respond, under the provisions of the FAR that

expressly provide that such procedural requirements apply equally to situations where a

debarment is extended.

Specifically, and as explained above, the FAR first establishes that the period of

debarment generally should not exceed three years except under one narrow enumerated

circumstance which is not presented here. See 48 C.F.R. § 9.406-4(a)(1)(i). The

relevant FAR provision then goes on to state that “[t]he debarring official may extend

the debarment for an additional period” under certain circumstances, and it also

mandates, critically, that “[i]f debarment for an additional period is determined to be

necessary, the procedures of [FAR] 9.406-3 shall be followed to extend the debarment.”

Id. § 9.406-4(b) (emphasis added). Thus, the applicable regulation plainly establishes

that the procedural mandates of FAR 9.406-3 apply to the debarring official’s decision

regarding whether or not a term of debarment should be extended.

Providing no support whatsoever, GSA argues that the “FAR 9.406-3 procedures

do not require either an additional opportunity to be heard or further due process” when

a debarment is extended. (Defs.’ Mem. at 41.) GSA’s unsupported contention

32
disregards the plain language of FAR 9.406-4, which does not say that only ‘some’ or

‘certain’ procedures shall be followed, or that the debarring agency may pick and

choose which procedures to follow and which to disregard. GSA’s argument also

ignores the numerous cases where courts have required an agency to follow the

procedural requirements of FAR 9.406-3 when the agency purports to impose

debarment for longer than the standard three-year period set forth in the FAR on the

basis of aggravating factors above and beyond the basis for the debarment itself. See,

e.g., Int’l Exports, Inc. v. Mattis, No. 14-2064, 2017 WL 3025837, at *10 (D.D.C. July

17, 2017) (setting aside as arbitrary and capricious, in violation of the APA, an

agency’s decision to impose an “additional term” of debarment extended to 15 years

based on “aggravating circumstances,” where the debarring official failed to make

specific findings of fact, as required by FAR 9.406-3(d)(2)(i), to address a dispute with

respect to the aggravating circumstances); see also Sameena Inc. v. U.S. Air Force, 147

F.3d 1148, 1153–55 (9th Cir. 1998) (holding that the Air Force was required to conduct

an evidentiary hearing under the FAR after notifying one of several appellants that his

debarment had been proposed for extension).

This Court also observes that reading the FAR to require procedural protections

prior to debarment extensions is consistent with the purpose of FAR 9.406-3, which is

not the case with GSA’s interpretation. As noted, FAR 9.406-3 implements debarment

procedures that are intended to be “‘consistent with principles of fundamental

fairness[,]’” Popal, 2011 WL 6826176, at *1 (quoting 48 C.F.R. § 9.406-3(b)(1)), and

fundamental fairness unquestionably includes the basic right to notice and an

opportunity to respond that Friedler was deprived of here. See Textor v. Cheney, 757 F.

33
Supp. 51, 59 (D.D.C. 1991) (“Principles of fundamental fairness under the FAR as well

as under the Fifth Amendment require reasonable notice to the plaintiff and an

opportunity to present his case.”); see also Canales, 2007 WL 2071709, at *5 (“In

addition to basic procedural rights, including notice and an opportunity to respond, the

FAR require[s] the [debarring official] to take additional steps to ensure that debarment

proceedings are fair and accurate and that debarment is warranted under the

circumstances.”). Thus, GSA’s position that the reference in the extension provision

(FAR 9.406-4(b)) to “the procedures of 9.406-3” does not include notice of and an

opportunity to respond to the reasons for an extension of the debarment term is

manifestly inconsistent with the thrust of the very provision that is referenced;

moreover, as a textual matter, it undermines the entire point of including any reference

to FAR 9.406-3’s procedures in the FAR’s extension provision at all. In other words,

the argument that the basic procedural protections laid out in FAR 9.406-3 do not apply

to the extensions that are contemplated in FAR 9.406-4(b) not only stands in contrast to

the FAR’s clear concern with a contractor’s procedural rights, it also renders FAR

9.406-4(b)’s express reference to FAR 9.406-3 meaningless. Cf. Corley v. United

States, 556 U.S. 303, 314 (2009) (“[O]ne of the most basic interpretive canons [is] that

a statute should be construed so that effect is given to all its provisions, so that no part

will be inoperative or superfluous, void or insignificant[.]” (alterations, internal

quotation marks, and citation omitted)).

Even setting aside the plain language and purpose of the FAR, GSA’s argument

that the procedural requirements in FAR 9.406-3 do not apply to debarment extensions

defies logic, when the function and operation of the FAR’s procedural requirements are

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taken into account. The agencies that were responsible for crafting the FAR

undoubtedly recognized that depriving a contractor of the right to conduct business with

the federal government is a severe sanction; therefore, they imposed significant

procedural prerequisites for the imposition of a debarment, including a limitation on its

duration—i.e., the regulations plainly state that a debarment generally cannot exceed

three years. See 48 C.F.R. § 9.406-4(a)(1). It is only under the provisions of FAR

9.406-4(b) that a debarment may be extended for a longer period of time, and while

there is no prescribed limit on the length of any such extension, the regulations make

clear that the extension must be based on additional facts and circumstances beyond

those that supported the initial debarment. See id. § 9.406-4(b). This all means that the

FAR’s provisions necessarily imply that a debarment extension can only be imposed if

due process protections are afforded. That is, given that the initial three-year

debarment period is only authorized if certain findings of fact are made and after the

prescribed procedural protections are provided, the FAR’s drafters must have intended

for procedural protections to be afforded to a contractor who is potentially facing an

unlimited extension of the debarment period based on new, additional facts and

circumstances (as the FAR expressly states), or it would be far too easy for an agency

to rely on purported new developments to circumvent the regulatory limits on its

debarment authority.

Stated a different way, GSA’s reading creates a world in which an agency must

make certain findings and provide full procedural safeguards before debarring a

contractor for a period of up to three years, but the agency could then extend the

debarment for an unlimited duration, without giving the contractor any notice of the

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new facts that are the basis for the extension or an opportunity to respond to whatever

additional causes purportedly supported its imposition. It is not too difficult to imagine

that the easiest route for an agency operating under those circumstances would be to

provide notice of one reason for debarment initially, and then purportedly ‘extend’ that

debarment based on a host of circumstances that were not previously disclosed or fully

debated. But an extended period of debarment aggrieves the excluded contractor in the

same manner as the initial period of exclusion, and in this Court’s view, it makes no

sense to conclude that the FAR’s drafters intended for the regulation’s extensive

procedural mandates to apply only with respect to the initial limited period of

debarment, and that no procedural safeguards whatsoever are required in connection

with the imposition of an extended (and potentially unlimited) debarment period. Cf.

Ali v. Health & Human Servs., No. 97-15264, 152 F.3d 923, at *1 (9th Cir. July 6,

1998) (observing that “[b]ecause the FAR does not place any time limits on extensions

of debarment . . . the Government may use this exception to impose a longer term of

debarment than otherwise would be permissible[,]” and because it has “clearly sought to

take advantage of the flexibility offered by this provision[,]” it “cannot now argue that

the distinction between an extension and a new debarment is merely semantic”).

The bottom line is this: under the FAR’s plain language and scheme, the

affected contractor must be notified of new causes for debarment, whether they are

reasons for the imposition of an initial debarment term or reasons for extension of a

debarment period. See 48 C.F.R. § 9.406-4(b). Here, even if there was a factual basis

for Swaby’s finding that Friedler’s continued connections to Symplicity were

aggravating facts that warranted a longer term of debarment than the three-year term

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she was considering on the basis of Friedler’s conviction alone (see Suspension Letter

Response, A.R. 476 (“GSA intends to debar [Friedler] for three years”)), the FAR

required her to provide Friedler with advance notice of these new reasons for

concluding that the five-year term of debarment she ultimately imposed was

appropriate, and an opportunity to assert that any such extension was not warranted.

Therefore, GSA violated FAR 9.406-4(b) when it debarred Friedler for five years

without having satisfied the FAR’s procedural mandates.

3. Where, As Here, An Agency Imposes A Debarment Or Debarment
Extension Without First Affording The Contractor Notice And An
Opportunity To Respond To The Causes For That Decision, The
Agency’s Action Violates The APA

One final point warrants mention. As explained above, the APA authorizes this

Court to “set aside” agency decisions that are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A), and a

court’s consideration of agency action under the APA’s arbitrary and capricious

standard largely and primarily involves a review of the agency’s conduct to determine

whether “the agency has acted within its statutory authority and that [the] action was

accompanied by the appropriate procedural protections and was supported by sufficient

evidence[.]” Trans-Pac. Freight Conference of Japan/Korea v. Fed. Mar. Comm’n, 650

F.2d 1235, 1251 (D.C. Cir. 1980); see also Nat’l Ass’n of Recycling Indus., Inc. v. ICC,

627 F.2d 1328, 1334 (D.C. Cir. 1980), cert. granted, decision vacated in part sub nom.,

Consol. Rail Corp. v. Nat’l Ass’n of Recycling Indus., Inc., 449 U.S. 609 (1981)

(describing the first two steps of the APA’s arbitrary and capricious review of an

agency action as (1) “did the Agency act within its statutory authority[,]” and (2) “was

there procedural due process, i.e., notice, followed by appropriate opportunity either to

37
comment or to participate in a hearing”). Having already determined that GSA failed to

provide Friedler with the due process that its rules require under the circumstances

presented here, this Court also concludes GSA’s failure to adhere to the procedural

requirements that its own regulations establish prior to taking the challenged action

necessarily rendered that action arbitrary and capricious for the purpose of the APA.

It is clear beyond cavil that “an agency is bound by its own regulations.” Nat’l

Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014)

(internal quotation marks and citation omitted). An agency “is not free to ignore or

violate its regulations while they remain in effect[,]” and thus, no matter how

well-reasoned or fully-articulated its decision making process is, “an agency action may

be set aside as arbitrary and capricious if the agency fails to comply with its own

regulations.” Id. (internal quotation marks and citations omitted). Thus, where, as

here, the GSA ignores its own regulations and imposes a debarment that does not adhere

to the procedural due process mandates of FAR 9.406-3, it has acted arbitrarily and

capriciously, no matter how well-reasoned and seemingly well-supported its ultimate

conclusion might be. See Int’l Exports, 2017 WL 3025837, at *10 (remanding a

debarment decision to the agency for further proceedings where the debarring official

failed to adhere to the procedural requirements of FAR 9.406-3, and stating that “[a]d

hoc departures” from an agency’s rules and regulations “cannot be sanctioned” (internal

quotation marks and citation omitted)); see also, e.g., Eco Tour Adventures, Inc. v.

Zinke, No. 14-2178, 2017 WL 1386316, at *8–12 (D.D.C. Apr. 18, 2017) (holding that

the National Park Service’s decision to allow incumbents to amend their contract

proposals was arbitrary and capricious, and thus violated the APA, because the

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amended proposals were prohibited under relevant statutory provisions and the agency’s

own regulations); Fuller v. Winter, 538 F. Supp. 2d 179, 186–91 (D.D.C. 2008) (setting

aside a decision of the Secretary of Navy as arbitrary, capricious, and contrary to law

where the Secretary failed to comply with naval regulations that required him to address

expressly the plaintiff’s arguments before refusing to amend the plaintiff’s naval

records).

The arbitrary and capricious nature of the ultimate debarment decision in a case

such as this one also stems from the fact that a debarring official, such as Swaby, is

required to consider the entire record on review when she makes the debarment

decision, see 48 C.F.R. § 9.406-3(d), and unless the contractor has an opportunity to

respond to the alleged bases for debarment, that determination will be made without the

benefit of the evidence and argument that the contractor could have presented if he had

been given adequate notice of the potential causes for debarment and had a

pre-debarment chance to present his side of the story. It is well established that an

administrative decision, including the decision to impose a debarment under the FAR,

“is the essence of arbitrariness” if it is not based on all relevant evidence. Sterlingwear

of Boston, Inc. v. United States, 11 Cl. Ct. 879, 889 n.7 (1987) (citation omitted); see

also id. at 889 & n.7 (holding a debarment under FAR 9.406-3 to be “beyond cavil

arbitrary” and prejudicial where the debarring official failed to examine and consider

all relevant evidence). Thus, courts have long held that a debarment under the FAR “is

legal only if the contractor has been afforded full due process protections.” BMY, a

Div. of HARSCO Corp. v. United States, 693 F. Supp. 1232, 1241 (D.D.C. 1988).

39
 B. GSA’s APA Violation Is Not A Harmless Error, Because It Is Not
Clear That GSA Would Have Debarred Friedler Based On His
Criminal Conviction Alone

Finally, GSA’s alternative argument that its debarment decision should be upheld

despite any due process defects because Friedler’s conviction alone supported the

ultimate debarment determination (Defs.’ Mem. at 33 (noting that Friedler could have

been debarred “based solely upon his admission of guilt and conviction”)) cannot be

countenanced under the circumstances presented here. While it is true that the law

permits this Court to sustain an agency’s debarment decision if the Court finds that the

agency would have debarred the contractor anyway based on the remaining valid

grounds for debarment, see Casino Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d

715, 717 (D.C. Cir. 2006); Alf v. Donley, 666 F. Supp. 2d 60, 67 (D.D.C. 2009), vacated

on other grounds (Dec. 13, 2010), the administrative record in the instant case supports

no such finding.

If anything, the evidence in the record before this Court suggests that GSA

would not have debarred Friedler absent the two new causes, or, at the very least, that it

would have debarred him for no more than the general maximum period of three years.

Indeed, the record demonstrates that Friedler pled guilty in April of 2014, after which

more than a year of additional negotiations regarding the potential for debarment

occurred. (See Defs.’ Mem. at 33.) Swaby was actually “poised to sign” an agreement

with Friedler that would have permitted him to avoid being debarred notwithstanding

his criminal conviction in August of 2015. (Email from Sarah Drabkin to Rand Allen &

Fred Levy (Aug. 11, 2015), A.R. 1050; see also ACA, A.R. 1050.006 (stating expressly

that Friedler was presently responsible and would not be debarred)). And even after

Friedler informed Swaby of the possibility that both Gerety (as Symplicity’s CEO) and

40
Kavanaugh (as Voting Trustee) would be replaced, as of August 12, 2015, Swaby

remained willing to implement the ACA (thereby avoiding Friedler’s debarment) if

Friedler appointed a new Voting Trustee, and, if necessary, a new CEO, by September

30, 2015. (See GSA Memo re Aug. 12, 2015 Teleconference with Fred Levy, A.R.

1052–53.)

Just three weeks later, however, and well before the September 30th deadline,

GSA and Swaby suddenly reversed course and issued the final decision to debar

Friedler for five years from the date of his initial suspension. (See Final Debarment

Notice, A.R. 1085–89.) The only event that preceded this sudden reversal was that

Swaby learned during the August 26th meeting that Friedler was physically back

working at Symplicity (see GSA Memo re Aug. 26, 2015 Quarterly Review Meeting

with Trustee, Monitor, and Symplicity, A.R. 1063), and that he had apparently

continued to discuss developing federal government lines of business while suspended

(see Defs.’ Statement ¶ 78; Email from Randy Sawyer to Maria Swaby (July 26, 2015),

A.R. 1074–1076.006). And these two circumstances were exactly the “causes” for

debarment that GSA listed in its Final Debarment Notice.

Thus, GSA’s argument that the Court should sustain the ultimate debarment

decision because the agency “would have clearly, and did in fact, act on a valid ground

for imposing the debarment—[Friedler’s] conviction, which is a prima facie cause for

debarment under the FAR” (Defs.’ Opp’n at 20)—is unpersuasive. GSA is correct that

a criminal conviction is a valid basis on which to impose a debarment, see 48 C.F.R.

§ 9.406-2(a), but it is also well established that if some of the causes that the agency

cites for its debarment determination are invalid, a court “may nonetheless sustain the

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[agency’s] decision” only if “the agency would clearly have acted on [the remaining

valid] ground even if the other[s] were unavailable.” Casino Airlines, 439 F.3d at 717

(emphasis added) (internal quotation marks and citation omitted).

The record here permits no such clarity. As laid out above, the undisputed

evidence establishes that Swaby was perfectly willing to forgo the debarment of

Friedler—and in fact had already decided not to debar him, if certain prerequisites were

met—notwithstanding the fact of his criminal conviction. The record also demonstrates

that the clear impetus for Swaby’s ultimate debarment decision was her discovery of the

allegations of fact that constituted the new causes she mentions in the Final Debarment

Notice, which weakens any inference that Friedler would have been debarred

regardless, based on his conviction alone. And this being the case, this Court cannot

say that GSA would have debarred Friedler at all, much less for a period longer than the

general maximum of three years, based solely on his criminal conviction and without

regard to the additional conduct that comprises the two (invalid) causes for debarment.

IV. CONCLUSION

For the reasons explained above, this Court concludes that GSA violated its

obligations under the FAR to provide Friedler with notice of and an opportunity to

respond to the new independent causes on which the agency’s final debarment decision

was (at least in part) ultimately based. Thus, the debarment decision was arbitrary,

capricious, and otherwise not in accordance with law, in violation of the APA, and

because the Court cannot conclude that GSA clearly would have debarred Friedler

based on the criminal conviction alone, Friedler’s debarment must be set aside.

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 Accordingly, as set forth in the accompanying order, Plaintiff’s motion for

summary judgment will be GRANTED, and Defendants’ motion for summary judgment

will be DENIED.

DATE: September 21, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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