F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 27 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CITY OF ALBUQUERQUE,
Plaintiff-Appellant,
v. No. 02-2214
UNITED STATES DEPARTMENT
OF THE INTERIOR,
Defendant-Appellee.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-01-1266 LH/WWD)
Charles W. Kolberg (Robert M. White, City Attorney, with him on the briefs),
Assistant City Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant.
Hugo Teufel III (David C. Iglesias, United States Attorney, and Raymond
Hamilton, Assistant United States Attorney, Albuquerque, New Mexico; and
James Weiner, Department of the Interior, Washington, D.C., with him on the
brief), Associate Solicitor, Department of the Interior, Washington, D.C., for
Defendant-Appellee.
Before SEYMOUR, Circuit Judge, and ANDERSON and BRORBY, Senior
Circuit Judges.
BRORBY, Circuit Judge.
BACKGROUND
The City of Albuquerque (“the City”) appeals the district court’s order
granting defendant the United States Department of the Interior’s (“Interior”)
motion to dismiss. The district court dismissed the complaint under Federal Rule
of Civil Procedure 12(b)(1), determining it lacked subject matter jurisdiction to
hear the City’s case challenging Interior’s procedures used in selecting a site for
new office space in Albuquerque, New Mexico. City of Albuquerque v. United
States Dep’t of the Interior, 217 F. Supp. 2d 1194, 1197 (D. N.M. 2002). We
disagree. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and
remand for further proceedings consistent with this opinion.
The heart of this dispute is a 2001 Solicitation for Offers issued by Interior
for the provision of office space to house the Office of the Special Trustee for
American Indians. According to the City’s complaint, throughout the site
selection process the City contacted Interior and recommended property within
Albuquerque’s central business area. Notwithstanding the City’s encouragement,
Interior ultimately selected a location outside Albuquerque’s central business
area.
Upon learning of Interior’s selected site, the City filed a complaint in the
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United States District Court for the District of New Mexico. The complaint
“challenges the procedures [Interior] used in reaching a final agency decision
with respect to the site selection.” Specifically, the City alleges Interior’s
selection process violated Executive Order 12,072 and its accompanying
regulations. See Exec. Order No. 12,072, 43 Fed. Reg. 36,869 (Aug. 16, 1978);
41 C.F.R. § 101-17.001 to 17.049 (2000).
Executive Order 12,072 provides “[e]xcept where such selection is
otherwise prohibited, the process for meeting Federal space needs in urban areas
shall give first consideration to centralized community business area and adjacent
areas of similar character, including other specific areas which may be
recommended by local officials.” Exec. Order No. 12,072 § 1-103. Similarly, the
associated regulations instruct “[i]n meeting space needs in urban areas ... [f]irst
consideration shall be given to a centralized business area and adjacent areas of
similar character.” 41 C.F.R. § 101-17.002(c)(1) (2000). The regulations further
state “[s]pace needs shall be met outside the central business area only when one
of [four] exceptions ... apply.” Id. at §§ 101.17.002(c)(1), (m)(4).
The City alleges Interior violated the Executive Order and associated
regulations through several actions during the selection process. First, the City
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alleges Interior “disqualified the only offer that involved construction within the
Central Business Area of the City of Albuquerque ... based on criteria not
expressed in the Solicitation and not affecting the suitability of the site. [Interior]
later announced that it was rescinding that disqualification.” Second, the City
alleges Interior “refused to consider available property recommended by local
officials.” Third, the City alleges the costs for a site within the centralized
business area were comparable to the costs of the site Interior selected outside the
area. Finally, the City criticizes Interior for “us[ing] a lack of open space as a
basis for rejecting a site [within the centralized business area]” thereby giving
“preference to suburban locations over [centralized business area locations].” In
sum, the City believes Interior preferred a site outside the centralized business
area and impermissibly manipulated the selection process to select that site.
In response to the City’s complaint, Interior filed a motion to dismiss,
arguing the district court lacked subject matter jurisdiction to hear the case.
Interior asserted the City’s complaint amounted to nothing more than a bid protest
which, under the Administrative Dispute Resolution Act, must be brought in the
United States Court of Federal Claims rather than federal district court. See 28
U.S.C. § 1491(b) note (2004) (Sunset Provision). Interior also argued the City
lacks standing and was untimely in bringing the suit.
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After allowing the City to respond to Interior’s motion, the district court
granted Interior’s motion to dismiss, determining it did not have subject matter
jurisdiction to adjudicate bid protests under either the Administrative Dispute
Resolution Act or the Administrative Procedure Act. Albuquerque, 217 F. Supp.
2d at 1195-97. Because the district court concluded it had no jurisdiction to
adjudicate the City’s claim, it did not address Interior’s standing and timeliness
arguments. See id. at 1195 n.1.
DISCUSSION
On appeal, the City challenges the district court’s dismissal of the City’s
claim for lack of subject matter jurisdiction. The City argues its cause of action
challenging improper agency action was properly brought in federal district court
under the Administrative Procedure Act.
In response, Interior urges us to affirm the district court’s decision to
dismiss the complaint because the court lacks subject matter jurisdiction. Interior
further asserts the City’s appeal must fail because the City has no standing under
the Administrative Procedure Act. Lastly, Interior argues the City’s action is
moot.
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For the reasons stated below, we agree with the City the district court erred
in concluding it lacked subject matter jurisdiction in this case. We also conclude
Interior’s standing arguments and mootness arguments are unpersuasive.
Therefore, we reverse and remand for further proceedings consistent with this
opinion.
A. Subject Matter Jurisdiction
We begin by examining whether the district court has subject matter
jurisdiction. We review the district court’s determination on this issue de novo.
U S West Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999), cert. denied, 528
U.S. 1106 (2000). Motions to dismiss for lack of subject matter jurisdiction
“generally take one of two forms: (1) a facial attack on the sufficiency of the
complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the
actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell,
299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003). Here,
Interior’s motion was a facial attack on the City’s assertion of subject matter
jurisdiction in the complaint. See Albuquerque, 217 F. Supp. 2d at 1195-96.
“Accordingly, we presume all of the allegations contained in the ... complaint
[are] true.” Ruiz, 299 F.3d at 1180. With this standard in mind, we turn to the
complaint’s assertion of jurisdiction.
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The City’s complaint alleges the district court “has jurisdiction over this
cause of action under [the Administrative Procedure Act,] 5 U.S.C. § 704, to
review final agency action for which there is no other adequate remedy in a
court.” In this appeal, the City similarly argues “[t]he Administrative Procedure[]
Act ... supplies district courts jurisdiction to hear alleged violations of [the
Executive Order at issue here].”
The Supreme Court, however, has instructed us “the [Administrative
Procedure Act] is not to be interpreted as an implied grant of subject-matter
jurisdiction to review agency actions.” Califano v. Sanders, 430 U.S. 99, 105
(1977). Because the Administrative Procedure Act does not confer subject matter
jurisdiction, we must look elsewhere to determine whether subject matter
jurisdiction exists in this case. See Eagle-Picher Indus., Inc. v. United States, 901
F.2d 1530, 1532 (10th Cir. 1990); Alamo Navajo Sch. Bd., Inc. v. Andrus, 664
F.2d 229, 232 (10th Cir. 1981).
We begin with the general federal question statute, 28 U.S.C. § 1331. 1 It
1
In its jurisdictional statement, the City claims “[p]ursuant to 28 U.S.C.
§ 1357, the court below had jurisdiction to adjudicate the federal question
presented by the City’s request for review of the final action of a federal agency.”
We conclude § 1357 is not applicable in this case because it is limited to revenue
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grants the district courts “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Id. While this grant of
authority is broad, § 1331 “does not waive the government’s sovereign
immunity.” Eagle-Picher Indus., 901 F.2d at 1532. District court jurisdiction in
this case can be based on § 1331 only if there is some other statute waiving
sovereign immunity. See New Mexico v. Regan, 745 F.2d 1318, 1321 (10th Cir.
1984).
In search of a waiver of sovereign immunity, we return to the
Administrative Procedure Act. It “contains a limited waiver of the United States’
sovereign immunity.” Id. The relevant section states:
A person suffering legal wrong because of agency action ... is
entitled to judicial review thereof. An action ... seeking relief other
than money damages ... shall not be dismissed ... on the ground that it
is against the United States.
5 U.S.C. § 702. This waiver is limited because it does not “confer[] authority to
grant relief if any other statute that grants consent to suit expressly or impliedly
cases and voting rights cases. See id. (“The district courts shall have original
jurisdiction of any civil action commenced by any person to recover damages for
any injury to his person or property on account of any act done by him, under any
Act of Congress, for the protection or collection of any of the revenues, or to
enforce the right of citizens of the United States to vote in any state.”)
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forbids the relief which is sought.” Id. Consequently, we must read § 702 “in
conjunction with other jurisdictional statutes waiving sovereign immunity.”
Regan, 745 F.2d at 1321-22.
According to Interior, the other waiver of sovereign immunity at issue in
this case is the Tucker Act, as amended by the Administrative Dispute Resolution
Act. See 28 U.S.C. § 1491. The Tucker Act waived the United States’ sovereign
immunity for some claims, provided the claims are brought in the United States
Court of Federal Claims. See Tucker Act of March 3, 1887, ch. 359, 24 Stat. 505
(codified as amended at 28 U.S.C. § 1491); United States v. Mitchell, 463 U.S.
206, 213-14 (1983). In 1996, the Administrative Dispute Resolution Act amended
the Tucker Act giving federal district courts and the Court of Federal Claims
subject matter jurisdiction to “render judgment on an action by an interested party
objecting to a solicitation by a Federal agency for bids or proposals for a
proposed contract.” Administrative Dispute Resolution Act of 1996, Pub. L. No.
104-320, 110 Stat. 3870, at 3874-75 (codified at 28 U.S.C. § 1491(b)). However,
the Act contained a sunset provision stating “[t]he jurisdiction of the district
courts of the United States over the actions described in § 1491(b)(1) of title 28,
United States Code ... shall terminate on January 1, 2001.” Id. (codified at 28
U.S.C. § 1491(b) note (2004) (Sunset Provision)). Congress did not act, and the
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sunset provision has since taken effect. See id.
The thrust of Interior’s argument is “[i]n granting express, concurrent
protest jurisdiction to the district courts, the [Administrative Dispute Resolution
Act] also took away the historical basis for district court protest jurisdiction under
[Scanwell Laboratories, Inc. v. Shaffer], 424 F.2d 859 (D.C. Cir. 1970).” “Thus,”
Interior argues, “when the district courts lost bid protest jurisdiction under [the
sunset provision], they also lost the ability to independently review such actions
under the [Administrative Procedure Act].” In evaluating Interior’s position, we
will examine not only the language of the Administrative Dispute Resolution Act,
but also the historical context in which Congress enacted it.
In the early twentieth century, parties upset with the federal government’s
contract procurement process or award of a contract had no judicial recourse. In
Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), the Supreme Court held a
disappointed bidder did not have standing to challenge the government’s bid
solicitation process. See id. at 126, 132. The Supreme Court opined the laws
governing the government’s solicitation of bids were meant to protect the
government rather than potential sellers. See id. at 126. Consequently, the
disappointed bidder in Lukens Steel had not acquired a legal right to any
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particular government action. See id.
Lukens Steel’s holding prevailed until 1970 when the District of Columbia
Circuit employed the Administrative Procedure Act to justify departing from
Lukens Steel. See Scanwell Labs., 242 F.2d at 866. In its seminal Scanwell case,
the District of Columbia Circuit noted Lukens Steel was decided “during the
heyday of the legal right doctrine, and before the passage of the Administrative
Procedure Act.” Id. The Administrative Procedure Act, according to Scanwell,
departed from the Lukens Steel reasoning and instead embraced “the basic
presumption of judicial review to one suffering legal wrong because of agency
action.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967)
(quotation marks omitted)). The opinion found “no evidence” Congress intended
to preclude judicial review in government contracting disputes. Id. “If anything,”
the Scanwell court opined “the legislative intent with respect to the field of
government contracting in general seems to ... favor [judicial] review.” Id. On
this basis, Scanwell held “one who has a prospective beneficial relationship has
standing to challenge the illegal grant of a contract to another.” Id. at 870. Other
circuits, including the Tenth Circuit, subsequently confirmed that disappointed
bidders had standing to challenge the government’s award of a contract. See, e.g.,
Integrity Mgmt. Int’l, Inc. v. Tombs & Sons, Inc., 836 F.2d 485, 489 & n.7 (10th
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Cir. 1987). Although “[t]he vast majority of cases brought pursuant to Scanwell
were brought by disappointed bidders,” American Federation of Government
Employees Local 1482 v. United States, 258 F.3d 1294, 1301 (Fed. Cir. 2001),
cert. denied, 534 U.S. 1113 (2002), some cases allowed non-bidders to exercise
standing under the Administrative Procedure Act. See, e.g., Ballerina Pen Co. v.
Kunzig, 433 F.2d 1204 (D.C. Cir. 1970); City of Reading, Pa. v. Austin, 816 F.
Supp. 351 (E.D. Pa. 1993).
While some parties were pursuing relief in federal district court, many
disappointed bidders sought recourse in the Court of Federal Claims and its
predecessor courts 2 under the Tucker Act. See, e.g., United States v. John C.
Grimberg Co., 702 F.2d 1362 (Fed. Cir. 1983) (en banc). The Tucker Act required
the claim be based on an express or implied contract. See Southfork Sys., Inc. v.
United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998) (discussing the historical
application of the implied contract theory in bid protest cases brought in the Court
of Federal Claims). Because of this requirement, standing in the Court of Federal
Claims was limited to bidders or potential bidders. See id. Another key
2
Prior to 1992, the Court of Federal Claims was known as the United
States Claims Court. See Federal Courts Administration Act of 1992, Pub. L. No.
102-572, § 902(a), 106 Stat. 4506, 4516. Throughout this opinion, for
simplicity’s sake we refer to that court by its current name.
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difference between the district courts and the Court of Federal Claims in
government procurement cases involved the standard of review. Unlike the
district courts’ review under the Administrative Procedure Act, the Court of
Federal Claims’ review was typically limited to monetary relief. See Finley v.
United States, 31 Fed. Cl. 704, 708 (1994) (overruled by statute). In 1982,
Congress gave the Court of Federal Claims jurisdiction to grant declaratory and
injunctive relief in “pre-award cases” – cases brought before the government had
awarded the contract. See Federal Courts Improvement Act of 1982, Pub. L. No.
97-164, § 133(a), 96 Stat. 25, 40; John C. Grimberg Co., 702 F.2d at 1372. The
Court of Federal Claims, however, still did not have authority to grant declaratory
relief in “post-award cases” – cases brought after the government had awarded the
contract. See John C. Grimberg Co., 702 F.2d at 1374.
With this history as backdrop, Congress enacted the Administrative Dispute
Resolution Act. See Administrative Dispute Resolution Act of 1996, Pub. L. No.
104-320, 110 Stat. 3870, at 3874-75 (codified at 28 U.S.C. § 1491). As
previously mentioned, this Act gave the Court of Federal Claims subject matter
jurisdiction to “render judgment on an action by an interested party objecting to a
solicitation by a Federal agency for bids or proposals for a proposed contract or to
a proposed award or the award of a contract or any alleged violation of statute or
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regulation in connection with a procurement or a proposed procurement.” Id.
(codified at 28 U.S.C. § 1491(b)). The Act, however, provided “[t]he jurisdiction
of the district courts of the United States over the actions described in
§ 1491(b)(1) of title 28, United States Code ... shall terminate on January 1,
2001.” Id. (codified at 28 U.S.C. § 1491(b) note (2004) (Sunset Provision)).
Congress did not act, and the sunset provision has since taken effect. Id.
Because the Administrative Dispute Resolution Act did not specifically
mention the Scanwell case in either the text of § 1491(b) or the sunset provision,
the Act’s affect on the district courts’ jurisdiction over cases brought by
disappointed bidders is not immediately evident. The Federal Circuit has opined
“the Court of Federal Claims is the only judicial forum to bring any governmental
contract procurement protest.” Emery Worldwide Airlines, Inc. v. United States,
264 F.3d 1071, 1080 (Fed. Cir. 2001). 3 On the other hand, at least one court has,
since the passage of the Administrative Dispute Resolution Act, allowed a
disappointed bidder to bring suit in the district court based on the Administrative
3
See also Novell, Inc. v. United States, 109 F. Supp. 2d 22, 24 (D. D.C.
2000) (“[T]here no longer is ... an independent, [Administrative Procedure Act]-
based jurisdiction for the district courts in government bid protest cases; rather,
Congress effectively subsumed [Administrative Procedure Act] jurisdiction of the
district courts into the more specific jurisdictional language of [the
Administrative Dispute Resolution Act].”).
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Procedure Act’s waiver of sovereign immunity as explained in Scanwell. See
Iceland S.S. Co.-Eimskip v. United States Dep’t of the Army, 201 F.3d 451, 453
(D.C. Cir.) (“Disappointed bidders may challenge a government contract award
under the Administrative Procedure Act.” (citing 5 U.S.C. § 706(2)(A) and
Scanwell, 424 F.2d at 874)), cert. denied, 529 U.S. 1112 (2000). 4
However, we need not determine today whether district courts retain
jurisdiction over bid protests brought by disappointed bidders under Scanwell and
the Administrative Procedure Act, because the case before us is not brought by a
disappointed bidder or potential bidder. Instead, we focus on the portion of 28
U.S.C. § 1491(b) granting jurisdiction under that section only if suit is brought by
“an interested party.” The Federal Circuit has held “interested party” refers only
to an “actual or prospective bidder or offeror whose direct economic interest
would be affected by the award of the contract or by failure to award the
contract.” Local 1482, 258 F.3d at 1302 (quotation marks and citation omitted).
If the Federal Circuit is correct, it seems the Tucker Act as amended by the
4
Iceland Steamship did not mention 28 U.S.C. § 1491 or the
Administrative Dispute Resolution Act. See Icelamd S.S., 201 F.3d at 453. For a
complete argument that the district courts retain jurisdiction over cases brought
by disappointed bidders see Peter Verchinski, Note, Are District Courts Still a
Viable Forum for Bid Protests?, 32 Pub. Cont. L. J. 393 (2003) (arguing the
district court should remain a viable forum for bid protestors).
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Administrative Dispute Resolution Act has little to say about cases brought by a
party who is not an actual or prospective bidder.
In deciding § 1491(b) only applies to actual or prospective bidders, the
Federal Circuit noted the text of the Administrative Dispute Resolution Act did
not explicitly state whether the Act “intended to expand the class of parties who
can bring bid protest actions in the Court of Federal Claims.” Local 1482, 258
F.3d at 1300. As previously explained, prior to the Administrative Dispute
Resolution Act, the Court of Federal Claims only heard cases brought by
disappointed bidders or prospective bidders because the court’s jurisdiction was
based on an express or implied contract with the United States. In contrast, the
district courts heard claims from a wider variety of plaintiffs. Citing three
primary reasons, the Federal Circuit decided the Administrative Dispute
Resolution Act only waived sovereign immunity for suits brought by actual or
potential bidders. First, the Federal Circuit stated waivers of sovereign immunity
should be narrowly construed. See id. at 1301; Hull ex. rel. Hull v. United States,
971 F.2d 1499, 1509 (10th Cir. 1992). Second, although the Administrative
Dispute Resolution Act specifically stated the Administrative Procedure Act’s
standard of review should apply, it did not state the Administrative Procedure
Act’s standing requirements should apply. See Local 1482, 258 F.3d at 1302.
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Additionally, instead of using the expansive standing language in the
Administrative Procedure Act, the Administrative Dispute Resolution Act used
the more narrow term “interested party.” See id. Third, while legislative history
for the Administrative Dispute Resolution Act in places mentions a desire to give
the Court of Federal Claims “Scanwell jurisdiction,” the vast majority of district
court cases applying Scanwell’s reasoning involved disappointed bidders. See id.
at 1301. Further, other portions of the legislative history stated the Act would
allow “‘a contractor [to] challenge a Federal contract award.’” Id. at 1301-02
(quoting 142 Cong. Rec. S11848 (daily ed. Sept. 30, 1996) (statement of Sen.
Cohen) (emphasis in original)). Based on this history, the Federal Circuit
concluded Congress only intended § 1491(b) to apply to suits brought by actual or
prospective bidders.
Because of the Federal Circuit’s “exclusive role in [cases brought under 28
U.S.C. § 1491(b)], it makes sense for us to adopt that circuit’s interpretation of
the term ‘interested party’” whether or not we would have adopted that
interpretation in the first instance. See Baltimore Gas & Elec. Co. v. United
States, 290 F.3d 734, 737-38 (4th Cir. 2002) (deciding the Administrative Dispute
Resolution Act only waives the United States’ sovereign immunity for suits
brought by an actual or prospective bidder in a case brought prior to the sunset
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provision’s effective date). Therefore, we conclude the Administrative Dispute
Resolution Act only waives sovereign immunity for a suit in the Federal Court of
Claims when the suit is brought by an actual or prospective bidder. Because the
City in this case is not an actual or prospective bidder, its case does not fall
within the ambit of the Administrative Dispute Resolution Act or the subject
matter jurisdiction of the Court of Federal Claims.
We take the Federal Circuit’s reasoning one step further and conclude the
Federal Dispute Resolution Act did not affect the district courts’ jurisdiction to
hear cases that are not brought by an actual or potential bidder. Prior to the Act,
the district court heard cases brought by non-bidders under 28 U.S.C. § 1331 and
the waiver of sovereign immunity in the Administrative Procedure Act. The
Administrative Dispute Resolution Act does not directly address these types of
cases. Section 1491(b) itself only addresses cases brought by an “interested
party,” which we have explained means only an actual or prospective bidder.
Likewise, the sunset provision only affects “actions described in section
1481(b)(1) of title 28” namely cases brought by actual or prospective bidders.
See 28 U.S.C. § 1491(b) note (Sunset Provision). Thus, nothing on the face of the
statute suggests it was meant to apply to or affect cases not brought by an
“interested party.”
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Furthermore, the legislative history of the Administrative Dispute
Resolution Act does not lead to the conclusion Congress intended to leave parties
who were not actual or prospective bidders without a remedy. Interior has not
provided, nor have we found, any piece of legislative history suggesting parties
who had some avenue available to seek redress before the passage of the
Administrative Dispute Resolution Act would be left without an avenue for relief
after the Act became effective. In fact, the only portions of the legislative history
that arguably address non-bidders refer only generally to “Scanwell jurisdiction.”
See Local 1482, 258 F.3d at 1301. While it may have been possible to read these
portions of the history as evidence Congress intended to eliminate all district
court jurisdiction except for the jurisdiction explicitly granted in the
Administrative Dispute Resolution Act, this reading would be inconsistent with
the reading the Federal Circuit employed in determining “interested party” refers
only to disappointed bidders or prospective bidders. The Federal Circuit
concluded the legislative history’s references to “Scanwell jurisdiction” most
likely referred only to the majority of Scanwell-based cases that involved
disappointed bidders or prospective bidders. We choose to adopt the Federal
Circuit’s reasoning.
In sum, we conclude the Administrative Dispute Resolution Act did not
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affect the district court’s ability to hear cases challenging the government’s
contract procurement process so long as the case is brought by someone other
than an actual or potential bidder. 5 The district court retains subject matter
jurisdiction over cases brought by non-bidders under 28 U.S.C. § 1331 and the
waiver of sovereign immunity in the Administrative Procedure Act. Thus, the
district court has jurisdiction over the subject matter of the City’s complaint.
B. Standing
We next turn to Interior’s argument that the City lacks standing to bring
this case. Although the district court did not address the question of the City’s
standing, see Albuquerque, 217 F. Supp. 2d at 1195 n.1, standing is a “threshold
issue” we can address “regardless of whether the district court expressly
addressed [it].” Bd. of County Comm’rs of Sweetwater County v. Geringer, 297
F.3d 1108, 1111 (10th Cir. 2002) (quotation marks and citation omitted). “The
standing inquiry requires us to consider both constitutional limits on federal-court
jurisdiction and prudential limitations on its exercise.” Id. (quotation marks and
citations omitted).
5
We again emphasize this opinion expresses no view as to whether a
bidder may bring a contract procurement-type suit in district court under Scanwell
and the Administrative Procedure Act.
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1. Constitutional Standing
We look first to the constitutional standing requirements. Constitutional
standing has three elements. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). “First, the plaintiff must have suffered an ‘injury in fact’” – an injury
both “concrete and particularized” and “actual or imminent.” Id. (citations
omitted). “Second, there must be a causal connection between the injury and the
conduct complained of.” Id. “Third, it must be ‘likely’ ... the injury will be
redressed by a favorable decision.” Id. at 561 (quotation marks and citation
omitted).
On appeal, Interior argues the City has not suffered “the requisite concrete,
particularized harm for which the court can provide a remedy.” To the extent the
City’s complaint alleges only harm caused by an inappropriate selection process
rather than harm caused by Interior’s failure to select a specific location, Interior
argues the City’s injury is only conjectural rather than concrete and particularized.
The City argues this case is distinguishable from other cases brought by cities
based on Executive Order 12,072, because in those cases the federal agency
“moved existing offices within the [central business area] to suburbs outside of
the city limits.” See City of Reading, Jane D. v. Social Security Admin., Civ. A.
No. 87-1867, 1987 WL 25625 (E.D. La. Nov. 30, 1987) (unpublished decision).
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In the case before us, Interior asserts it chose a site within the City, so, Interior
reasons, the City’s tax revenues will not be affected. To the extent the City
alleges harm suffered because Interior failed to select the only offer within the
central business area, Interior asserts the City cannot establish it has suffered any
harm because, it alleges, other government offices have since occupied that site.
Interior also argues “[t]he City cannot point to a single other site within the
[central business area] that would have been suitable for Interior’s needs” and
asserts “no other known site exists.” Thus, Interior urges us to conclude the City
lacks standing to bring this case.
We conclude the City’s complaint has alleged sufficient facts to establish
constitutional standing. “At the pleading stage, general factual allegation of
injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are
necessary to support the claim.” Defenders of Wildlife, 504 U.S. at 561
(quotation marks, alterations and citations omitted). Here, the City’s complaint
alleged that by locating its offices outside the central business area, Interior was
“weakening the City of Albuquerque and discouraging development and
redevelopment of the [central business area].” Although Interior argues this
alleged injury is too conjectural, it is the type of injury Executive Order 12,072
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contemplates. See Exec. Order. 12,072 § 1-101. The Executive Order provides
“Federal facilities and Federal use of space in urban areas shall serve to
strengthen the Nation’s cities and to make them attractive places to live and work.
Such Federal space shall conserve existing urban resources and encourage the
development and redevelopment of cities.” Id. In this type of case, the City’s
complaint need not allege economic injury or lost tax revenue – “standing may be
predicated on noneconomic injury.” Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 486 (1982). Here the City
has alleged a concrete interest in the development of its central business area and
that it will be harmed should Interior locate its offices outside the central business
area. This is sufficient to establish a constitutional “injury in fact” in a case
brought under Executive Order 12,072. See City of Reading, 816 F. Supp. at 358
(noting that a plaintiff need not suffer economic injury to meet the constitutional
standing requirements in cases brought under Executive Order 12,072).
We also reject Interior’s suggestion the City lacks standing because once
other federal agencies filled the one central business area location that offered
space to Interior, any harm to the City disappeared. The City’s alleged injury is
not caused by Interior’s failure to select a specific site in the central business
area. Rather it is based on Interior’s failure to select any site in the central
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business area. Although Interior faults the City’s complaint for not identifying
other specific locations, the City’s complaint did allege “[t]he Department of
Interior despite extensive contact from the City of Albuquerque refused to
consider available property recommended by local officials within the [central
business area].” The natural inference from this allegation is that available
property exists within the City of Albuquerque’s central business area. Because
the case is before us with only a complaint, we must presume that the allegations
in the complaint are correct and the City will be able to prove specific facts to
support the claim. See Defenders of Wildlife, 504 U.S. at 561. Consequently, we
conclude Interior’s argument that the City does not meet the constitutional
standing requirements is without merit.
2. Prudential Standing
In addition to its constitutional standing arguments, Interior contends the
City does not meet the prudential standing requirements because it “is not within
the ‘zone of interests’ of a statute supporting standing under the [Administrative
Procedure Act].” In making this argument, Interior asserts neither the executive
order nor the Federal Property and Administrative Services Act of 1949 (which
the Executive Order was based on) evidences congressional intent to provide non-
bidders a private right of action under the executive order.
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We agree Executive Order 12,072 does not specifically create a cause of
action or mention judicial review. However, “under certain circumstances,
Executive Orders ... are treated as agency action and reviewed under the
Administrative Procedure Act.” City of Carmel-by-the-Sea v. United States Dep’t
of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997). To be enforceable under the
Administrative Procedure Act the executive order must meet three specific
requirements. First, the executive order must have a “specific statutory
foundation.” Id. If an executive order has a specific statutory foundation it is
given the effect of a congressional statute. See Farkas v. Texas Instrument, Inc.,
375 F.2d 629, 632 & n.1 (5th Cir. 1967); Farmer v. Philadelphia Elec. Co., 329
F.2d 3, 7 (3d Cir. 1964). Second, neither the statutory foundation nor the
executive order must preclude judicial review. See 5 U.S.C. § 701(a)(1). Third,
there must be “law to apply” – that is, there must be an objective standard by
which a court can judge the agency’s actions. See 5 U.S.C. § 701(a)(2); Heckler
v. Chaney, 470 U.S. 821, 830 (1985). If the executive order meets these
requirements it can be enforced through judicial action. See City of Carmel-by-
the-Sea, 123 F.3d at 1166.
a. Statutory Foundation
We begin with the requirement that the executive order be based on a
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specific statutory foundation. Executive Order 12,072 was issued under the
“authority vested in [the] President of the United States of America by Section
205(a) of the Federal Property and Administrative Services Act of 1949, as
amended (40 U.S.C. 486(a)).” This Act gave the President power to “prescribe
such policies and directives, not inconsistent with the provisions of this Act, as he
shall deem necessary to effectuate the provisions of said Act, which policies and
directive shall govern the Administrator and executive agencies in carrying out
their respective functions.” 40 U.S.C. § 486(a) (2000). 6 As a House of
Representatives Report explains, “[b]y reason of the impact of this legislation
upon all agencies in the executive establishment, this subsection authorizes the
President, if he deems it advisable, to prescribe over-all policies and directives
which shall govern the Administrator of General Services and executive agencies
in operations under this act.” H.R. Rep. No. 81-670 (1949), reprinted in 1949
U.S.C.C.A.N. 1475, 1491.
Interior suggests the Executive Order lacks sufficient statutory foundation
6
This portion of the Act has recently been amended. Its current version,
located in 40 U.S.C. § 121 (2004), states: “The President may prescribe policies
and directives that the President considers necessary to carry out this subtitle.”
The change in wording was intended to conform the language of the statute to
contemporary usage rather than to substantively change the law. See H.R. Rep.
No. 107-479 (2002), reprinted in 2002 U.S.C.C.A.N. 827, 827-28.
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because there is nothing in the language of the Federal Property and
Administrative Services Act of 1949 that indicates a congressional intention to
create enforceable rights in non-bidders. Further, Interior suggests the statutory
foundation is insufficient because the Act does not contain “any directive
addressing location of federal office space within the [central business area].”
Our review of the Federal Property and Administrative Services Act of
1949 convinces us the Act provides a sufficient statutory foundation for
Executive Order 12,072. It is well established that Congress may delegate
responsibility to the executive branch so long as Congress provides an
“intelligible principle” to guide the exercise of the power. See J.W. Hampton, Jr.
& Co. v. United States, 276 U.S. 394, 409 (1928). Congress chose to utilize a
relatively broad delegation of authority in the Federal Property and
Administrative Services Act of 1949. However, Congress did instruct the
President’s exercise of authority should establish “an economical and efficient
system for ... the procurement and supply” of property. See 40 U.S.C. § 471
(2000). 7 We think Executive Order 12,072’s directions concerning the
consideration of locations within the central business area are sufficiently related
7
The current version is codified at 40 U.S.C. § 101 (2004).
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to the Act to be a valid exercise of the Act’s delegated authority. 8 Thus,
Executive Order 12,072 must “be accorded the force and effect given to a statute
enacted by Congress.” See Farkas, 375 F.2d at 632. Since we give the Executive
Order the force and effect of a statute, it can provide the basis for standing under
the Administrative Procedure Act. It simply does not matter that the Federal
Property and Administrative Services Act of 1949 does not specifically mention
either central business areas or each party that has standing under the Act.
Interior suggests standing under the Administrative Procedure Act can only
be provided through a statute itself rather than an executive order. In support of
its position, Interior cites several cases holding federal employees did not have
standing to sue under Office of Management and Budget Circular A-76. See, e.g.,
Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002), cert. denied, 124 S. Ct. 64
(2003); United States Dep’t of Health & Human Servs. v. Fed. Labor Relations
Auth., 844 F.2d 1087, 1096 (4th Cir. 1988). We think Interior’s reading of the
Administrative Procedure Act is too restrictive. The Administrative Procedure
Act allows standing for “[a] person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of
8
Indeed, Interior does not argue Executive Order 12,072 goes beyond the
scope of authority Congress delegated.
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a relevant statute.” 5 U.S.C. § 702. Interior’s position seems to ignore the
portion of the Act granting standing to “[a] person suffering legal wrong because
of agency action.” Id. When this portion is read in conjunction with the rest of
the Administrative Procedure Act, we think it clearly allows standing for those
plaintiffs “within the ‘zone of interests’ protected by the statute, executive order,
or regulation which the agency is alleged to have violated” provided, of course,
that the executive order or regulation is within in the scope of authority delegated
by Congress. Buffalo Cent. Terminal v. United States, 886 F. Supp. 1031, 1044
(W.D. N.Y. 1995). See also H & F Enters., Ltd. v. United States, 973 F. Supp.
170, 174 (D. D.C. 1996). Similarly, Interior’s reliance on the cases involving
Office of Management and Budget Circular A-76 is misplaced. The Circular
explicitly instructed it should “not be construed to create any substantive or
procedural basis for anyone to challenge any agency action or inaction.” See
Courtney, 297 F.3d at 462; Fed. Labor Relations Auth., 844 F.2d at 1095. 9 If
anything, these cases support our conclusion because they looked beyond the
foundational statute in determining whether the plaintiffs had standing. Cf. Lee v.
9
The Federal Labor Relations Authority case further explained: “A
Presidential order may have the force and effect of law when it is issued pursuant
to statutory mandate or a delegation from Congress of lawmaking authority ..., but
Circular A-76 was issued pursuant to no such authority.” Fed. Labor Relations
Auth., 844 F.2d at 1096. But see Nat’l Fed’n of Fed. Employees v. Cheney, 883
F.2d 1038, 1043 (D.C. Cir. 1989) (stating “although promulgated pursuant to
congressional authority, the Circular itself cannot grant standing”).
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United States Air Force, 354 F.3d 1229, 1245-46 (10th Cir. 2004) (consulting an
administrative regulation in determining whether plaintiff met the prudential zone
of interests test). Consequently, we conclude the executive order has sufficient
statutory authority and must be accorded the force of a congressional statute.
b. Availability of Judicial Review
We next consider whether the Federal Property and Administrative Services
Act of 1949 or Executive Order 12,072 preclude judicial review. Standing under
the Administrative Procedure Act is not available if a statute precludes judicial
review of the agency action. See 5 U.S.C. § 701(a)(1). In this case, neither the
Act nor the Executive Order explicitly denies standing or a private right of action
to any plaintiffs.
In Part A of this opinion, we discussed the evolution of judicial review of
the government procurement process. As we explained, the Administrative
Procedure Act opened the door by granting plaintiff standing to challenge the
government procurement process. See Scanwell Labs., 242 F.2d at 866. In
Scanwell, the District of Columbia Circuit states there was “no evidence”
Congress intended to preclude judicial review in government contracting disputes.
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Id. “If anything, the legislative intent with respect to the field of government
contracting in general seems to ... favor ... review.” Id. We find nothing causing
us to believe Congress intended to preclude review in cases like the one before
us.
Interior argues it is “the City’s burden to show that Executive Order 12,072
or any relevant statute ‘suggests a congressional intent to permit the plaintiff’s
suit.’” This argument misses the mark. The Supreme Court has clearly stated that
under a prudential “zone of interests” inquiry, “there need be no indication of
congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 399-400 (1987). There is a presumption favoring review
unless “the congressional intent to preclude judicial review is fairly discernable in
the statutory scheme.” Id. at 399 (quotation marks and citations omitted).
Here, Interior argues we should infer a congressional intent to preclude
review from language in Executive Order 13,006. Executive Order 13,006 was
issued pursuant to the President’s authority under “the laws of the United States
of America, including the National Historic Preservation Act (16 U.S.C. 470 et
seq.) and the Public Buildings Cooperative Use Act of 1976 (90 Stat. 2505), and
in furtherance of and consistent with Executive Order No. 12072.” Unlike
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Executive Order 12,072, Executive Order 13,006 specifically states it “is not
intended to create, nor does it create, any right or benefit, substantive or
procedural, enforceable at law by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.” We do not think
the fact one executive order specifically states it does not create a private right of
action leads to the conclusion another executive order lacking a similar provision
also does not create a private right of action. Rather the fact some executive
orders explicitly provide they do not create a private right of action suggests other
executive orders may create a right of action.
In short, Interior has not cited, nor have we found, any persuasive evidence
indicating executive orders issued under the Federal Property and Administrative
Services Act of 1949 are unenforceable.
c. Law to Apply
Lastly, we consider whether there is any meaningful law to apply. Under
the Administrative Procedure Act, judicial review is unavailable where “agency
action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As the
Supreme Court has explained, the scope of this provision is “narrow;” it is only
applicable when there is “no law to apply” or where there is “no meaningful
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standard against which to judge the agency’s exercise of discretion.” Heckler,
470 U.S. at 830. We have previously held “law to apply” can refer to
administrative regulations as well as statutes. See McAlpine v. United States, 112
F.3d 1429, 1433 (10th Cir.), cert. denied, 522 U.S. 984 (1997). Likewise, the
“law to apply” may be supplied by an executive order. See City of Carmel-by-the-
Sea, 123 F.3d at 1166 (concluding there was law to apply when an executive
order “set objective standards”).
Interior argues “[t]he Executive Order and regulations provide[] no fixed
standard.” We disagree. The Executive Order provides that “[e]xcept where such
selection is otherwise prohibited, the process for meeting Federal space needs in
urban areas shall give first consideration to a centralized community business area
and adjacent areas of similar character, including other specific areas which may
be recommended by local officials.” Exec. Order No. 12,072 § 1-103. The Order
instructs the Administrator of General Services to “develop programs to
implement the policies of this Order” and to “[i]ssue regulations, standards, and
criteria for the selection, acquisition, and management of Federally owned and
leased space.” Id. at § 1-201(b). In following this directive, the Administrator
issued a plethora of regulations. Among other things, the regulations in effect at
the time of the procurement process in this case required:
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In meeting space needs in urban areas
First consideration shall be given to a centralized business area and
adjacent areas of similar character in the central city ..., including
other specific areas of a city recommended by the elected chief
executive officer of the local government or a designee, except where
this type of consider is otherwise prohibited. Space needs will be
met outside the central business area of a central city ... only when
one of the following circumstances exist:
(i) The service area of an activity is limited to a clearly
defined sector of a city or a suburban or rural community, as is
the case with satellite or branch offices; or where onsite
activities are involved, such as inspection and/or maintenance
operations at border stations, airports, seaports, or other
similar activities;
(ii) Immediate compliance is not possible due to
existing leasing commitments in areas outside the central
business area ... In these cases, plans for the future
compliance shall be made; i.e., the activity shall be relocated
to the central business area upon expiration of the lease;
(iii) The proposed facility or the activity’s use of a
facility is not in compliance with local land use or zoning
ordinances; or
(iv) The elected chief executive officer of the local
government or a designee advises the agency that an activity or
facility should be located in an area of the central city other
than the [central business area].
41 C.F.R. § 101-17.002(c)(1) (2000). The regulations additionally require the
agency collect a variety of data to be used in “reach[ing] a final decision on a
proposed relocation into a central business area.” 41 C.F.R. § 101-17.002(d)(4)
(2000). We think it would be redundant to cite further from these lengthy
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regulations. Suffice it to say, the portions quoted above illustrate the regulations’
specific nature. We conclude the regulations are sufficiently specific to allow a
court to determine whether Interior abused its discretion in its site selection
process. 10
Interior argues new regulations “have replaced and give even greater
discretion to agencies than the regulations” in effect at the time of the
procurement process at issue here. See General Services Administration Real
Property Policies, 66 Fed. Reg. 5358 (Jan. 18, 2001); General Services
Administration Real Property Policies Update, 67 Fed. Reg. 76820 (Dec. 13,
2002). Even assuming Interior’s characterization of the “new” regulations is
correct, 11 it is of little consequence in the case before us. We must consider this
case “only on the basis of the regulations in effect at the times material.” Foster
v. Udall, 335 F.2d 828, 830 (10th Cir. 1964). To do otherwise would
impermissibly give retroactive effect to the new regulations. See Greene v.
United States, 376 U.S. 149, 160 (1964) (holding regulations affecting antecedent
10
To the extent Haltermann v. Johnson, 988 F. Supp. 1477 (S.D. Ga.
1996), reached a different conclusion, we think it was decided incorrectly.
Because the scope and effect of the current regulations are not before us,
11
we make no attempt to ascertain the precise effect of these new regulations.
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rights are not to be given retroactive effect absent an “unequivocal” manifestation
the regulations were meant to be applied retroactively). The fact that current
regulations might leave much to an agency’s discretion does not mean prior
regulations necessarily afforded the agency the same amount of discretion because
an agency is free to change its method of meeting its statutory obligations. See
KVK P’ship v. Hotel, 759 F.2d 814, 816 n.2 (10th Cir. 1985). 12 Consequently, we
reaffirm our conclusion there is sufficient law for the court to apply in this case.
For the foregoing reasons, we think Executive Order 12,072 may be
enforced under the Administrative Procedure Act. Having determined the
Executive Order is enforceable in the courts, it is easy to conclude the City is
within the zone of interests protected by the Executive Order. The Order itself
explains: “Federal facilities and Federal use of space in urban areas shall serve to
strengthen the Nation’s cities and to make them attractive places to live and work.
Such Federal space shall conserve existing urban resources and encourage the
development and redevelopment of cities.” Executive Order No. 12,072 § 1-101.
The mandate of Executive Order 12,072 clearly encompasses the City’s challenge
12
Interior also urges us to affirm the district court’s ruling on the basis the
“uncontroverted record” shows Interior followed the new regulations. Suffice it
to say the facts on this matter are not uncontroverted.
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to Interior’s selection process and the purported injury resulting therefrom. As
the City’s complaint states, the removal of Interior offices from Albuquerque’s
central business area will injure the City “by weakening the City ... and
discouraging development and redevelopment of the [central business area].”
Because this injury is exactly the type of injury President Carter hoped to address
with Executive Order 12,072, we conclude the City has standing to challenge
Interior’s actions. See H & F Enters., 973 F. Supp. at 176; City of Reading, 816
F. Supp. at 358.
C. Mootness
Finally, we address Interior’s argument the City’s complaint must be
dismissed because the City no longer has a legally cognizable interest in the
outcome. Interior argues the City’s claim is moot because two other federal
agencies have since filled “the only [central business area] site that the City
identified as available for selection.” Interior asserts that since “the site the City
really wanted Interior to build upon ... is no longer available and no other known
site exists,” any alleged harm the City suffered can no longer be redressed.
The Supreme Court has held, under the “case or controversy” requirement
in Article III of the Constitution, “federal courts are without power to decide
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questions that cannot affect the rights of litigants in the case before them.” North
Carolina v. Rice, 404 U.S. 244, 246 (1971). “A case is moot when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quotation
marks and citations omitted). The crucial question is whether “granting a present
determination of the issues offered ... will have some effect in the real world.”
Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999)
(quotation marks and citations omitted).
We conclude the City’s claim is not moot. In this case, the parties disagree
as to whether there is any available property within the central business area. As
we explained in Part B of this opinion, Interior asserts there are no appropriate
sites within the central business area, while the City’s complaint can reasonably
be read as alleging there are several sites available. Accepting the City’s
allegations as correct, if Interior issued a new solicitation of offers for its new
space and followed the applicable executive order and regulations, it may very
well select a site within the central business area. Thus, the City’s asserted injury
related to the development and revitalization of this area could be remedied. We,
therefore, conclude the City’s challenge is not moot.
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CONCLUSION
Based on the preceding analysis we REVERSE and REMAND for further
proceedings consistent with this opinion.
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City of Albuquerque v. United States Department of the Interior
Court: Court of Appeals for the Tenth Circuit
Date filed: 2004-07-27
Citations: 379 F.3d 901
Copy CitationsCombined Opinion