Sergent's Mechanical Systems, Inc. v. United States

In the United States Court of Federal Claims

No. 21-1685C

(Filed: November 29, 2021)

)

SERGENT’S MECHANICAL )

SYSTEMS, INC. d/b/a SERGENT )

CONSTRUCTION, )

)

Plaintiff, )

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v. )

)

THE UNITED STATES,

)

Defendant. )

)

Joel L. Hamner, Whitcomb, Selinsky, P.C., Denver, CO, for Plaintiff. With him on the

briefs was Jonathan Perrone.

Michael D. Snyder, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for Defendant. With him on the briefs were

Brian M. Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey,

Jr., Acting Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice, Washington, D.C.

ORDER

SOLOMSON, Judge.

The issue before the Court is straightforward: whether the United States Court

of Federal Claims can grant preliminary injunctive relief where Plaintiff asserts only a

Contract Disputes Act (“CDA”)1 claim pursuant to 28 U.S.C. § 1491(a). The Court once

again answers that question in the negative — and it is not a close call.

I. PROCEDURAL BACKGROUND

On August 12, 2021, Plaintiff, Sergent’s Mechanical Systems, Inc., d/b/a Sergent

Construction (“SMSI”), filed a Complaint against Defendant, the United States, acting

1 Pub. L. No. 95-563, 92 Stat. 2383 (1978) (codified at 41 U.S.C. §§ 7101–7109).

1

by and through the United States Department of Veterans Affairs (“VA”). ECF No. 1

(“Compl.”). SMSI alleged that the VA improperly terminated SMSI’s contract for

default. Id. ¶ 1, 2. The now-terminated contract was for “resolv[ing] certain heating,

ventilation, and air conditioning (‘HVAC’) issues” at a VA center in Florida. Id. ¶ 15.

The Complaint also alleged, inter alia, that the VA improperly failed to provide

declaratory relief, changed the contract, and refused to pay SMSI “for work completed

under the contract.” Id. ¶ 1. The Complaint cited the Tucker Act, 28 U.S.C. § 1491, as

amended by the CDA, as the basis for the Court’s jurisdiction. Id. ¶ 12. SMSI filed an

Amended Complaint on August 24, 2021, reiterating the same claims and the same

jurisdictional basis for them (and reflecting apparently only minor corrections). ECF

No. 12 (“Am. Compl.”). The Amended Complaint seeks primarily money damages, as

well as declaratory relief unrelated to SMSI’s request for preliminary equitable relief.

Id. at 19.

On the same day that SMSI filed its initial Complaint, SMSI filed a motion for a

temporary restraining order and preliminary injunction. ECF No. 5 (“TRO-PI Motion”).

SMSI requested that this Court enjoin the VA from: (1) “[e]xecuting a completion

contract for any remaining” work under the terminated contract; (2) “authorizing the

performance of any work” under any completion contract that “has already been

executed”; and (3) “[n]oticing other federal procuring agencies, contracting officers, or

other government officials of the contested termination for default . . . via the

government’s various evaluation reporting tools[.]” Id. at 1–2. Although SMSI sought

such preliminary relief pursuant to 28 U.S.C. § 1491(b)(2), ECF No. 6 at 18, neither

SMSI’s initial Complaint nor its Amended Complaint mention 28 U.S.C. § 1491(b). See

Compl.; Am. Compl.; TRO-PI Motion at 2 (“Concurrent with this motion, Sergent has

filed a Complaint under [the] Contract Disputes Act of 1978[.]”).2

On August 16, 2021, the Court held a status conference to discuss the TRO-PI

Motion. ECF No. 10; ECF No. 15 (“Tr.”). During that status conference, SMSI’s counsel

conceded: (1) SMSI’s Complaint was limited to a CDA claim; (2) the TRO-PI Motion

relied upon § 1491(b), but not § 1491(a); and (3) the TRO-PI Motion should have cited, but

did not address, 28 U.S.C. § 1491(a).3

2Section 1491(b) of Title 28 of the United States Code provides an “interested party” with a

cause of action to challenge an agency’s procurement-related decisions, commonly referred to

as “bid protests.” Tolliver Grp., Inc. v. United States, 151 Fed. Cl. 70, 95–99 (2020) (discussing

actions pursuant to 28 U.S.C. § 1491(b)).

3 See Tr. at 7:16–22 (“THE COURT: But you do agree that there is no 1491(b) claim here at all,

correct? [PLAINTIFF]: Related to bids, Your Honor, no. THE COURT: Well, related to a

procurement action. This is a pure CDA claim in your Complaint. Correct? [PLAINTIFF]: Yes,

Your Honor.”); Tr. at 4:20—5:3 (“THE COURT: But your [TRO-PI] Motion only cites 1491(b). Is

it your contention that I have injunctive relief authority under 1491(a)? [PLAINTIFF]: Yes, sir.

Yes, Your Honor. THE COURT: So where is any citation to 1491(a) in your motion?

2

Following the status conference, the Court, on August 19, 2021, denied SMSI’s

TRO-PI Motion because “the plain language of § 1491(a)(2) does not authorize this

Court to issue injunctive relief in [monetary] CDA cases, and particularly not

preliminary injunctive relief.” Sergent’s Mech. Sys., Inc. v. United States, -- Fed. Cl. --,

2021 WL 3672176, at *2 (Fed. Cl. Aug. 19, 2021).

On August 27, 2021, SMSI filed a motion requesting that this Court certify its

denial of SMSI’s TRO-PI Motion for an interlocutory appeal to the United States Court

of Appeals for the Federal Circuit, our appellate court. ECF No. 13-1, Plaintiff’s

Memorandum in Support of Its Motion to Certify (“Pl. Mem.”). The government filed

its response on September 10, 2021, arguing that SMSI’s motion to certify was

“improper and unsupported by any source of relevant law.” ECF No. 16 at 1. In

particular, the government pointed out that SMSI could have pursued an immediate

interlocutory appeal because this Court’s order denied a request for injunctive relief. Id.

at 2–3 & n.2 (citing 28 U.S.C. § 1292(a)(1), (c)(1), and Cont’l Serv. Grp., Inc. v. United

States, 2017 WL 4926842, at *6 (Fed. Cl. Oct. 31, 2017)).

The Court agreed with the government; the law is clear that SMSI’s motion for

certification was unnecessary. ECF No. 17. Nevertheless, the Court exercised its

discretion to treat SMSI’s motion as one for reconsideration of this Court’s prior denial

of SMSI’s TRO-PI Motion, pursuant to Rule 54(b) of the Rules of the United States Court

of Federal Claims (“RCFC”). Id. (citing E&I Glob. Energy Servs., Inc. v. United States, 152

Fed. Cl. 524, 530–33 (2021)). This tolled the 60-day appeal deadline. ECF No. 17 (citing

O’Connor v. United States, 392 F. App’x 861, 862 (Fed. Cir. 2010) (per curiam)). The

Court ordered the government to respond to the merits of SMSI’s arguments regarding

preliminary injunctive relief, ECF No. 17, and the government accordingly filed its

response on September 28, 2021, ECF No. 18 (“Def. Resp.”). Plaintiff filed a reply on

October 13, 2021. ECF No. 20 (“Pl. Reply”). Plaintiff’s motion for reconsideration is

now fully briefed.

II. STANDARD OF REVIEW

Pursuant to RCFC 54(b), this Court has considerable discretion to revisit any

decision “that adjudicates fewer than all the claims” at issue, as long as it does so

“before the entry of a judgment adjudicating all the claims.” Because this Court has not

yet entered a judgment in this case, the Court elects to reconsider its decision to deny

SMSI’s TRO-PI Motion. See E&I Global Energy Servs., 152 Fed. Cl. at 531–32

(summarizing precedent and concluding that “the Court’s discretion under the law of

the case doctrine, and RCFC 54(b), is vast” and that “the court has the power to

[PLAINTIFF]: Your Honor, if (a) is not cited in the motion, then that would have been an

oversight as to the letter of that particular citation.”).

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reconsider its decisions until a judgment is entered” (quoting Exxon Corp. v. United States,

931 F.2d 874, 877 (Fed. Cir. 1991))).

III. THE COURT DENIES SMSI’S MOTION FOR RECONSIDERATION AND

ONCE AGAIN REJECTS SMSI’S REQUEST FOR A TEMPOARY

RESTRAINING ORDER OR PRELIMINARY INJUNCTION

The United States Court of Federal Claims does not have general authority to

issue injunctive relief. See, e.g., Richardson v. Morris, 409 U.S. 464, 465 (1973) (“[T]he

[Tucker] Act has long been construed as authorizing only actions for money judgments

and not suits for equitable relief against the United States.”); Bowen v. Massachusetts, 487

U.S. 879, 905 (1988) (“The Claims Court does not have the general equitable powers of a

district court to grant prospective relief. Indeed, we have stated categorically that ‘the

Court of Claims has no power to grant equitable relief.’” (quoting Richardson, 409 U.S. at

465)); United States v. Tohono O’Odham Nation, 563 U.S. 307, 313 (2011) (“Unlike the

district courts, however, the [Court of Federal Claims] has no general power to provide

equitable relief against the Government or its officers.”); Maine Cmty. Health Options v.

United States, 140 S. Ct. 1308, 1330 (2020) (noting that “the Court of Federal Claims ‘does

not have the general equitable powers of a district court to grant prospective relief’”

(quoting Bowen, 487 U.S. at 905)); Roth v. United States, 378 F.3d 1371 (Fed. Cir. 2004)

(“the Court of Federal Claims does not possess general equity jurisdiction”); Alvarado

Hosp., LLC v. Price, 868 F.3d 983, 999 (Fed. Cir. 2017) (“The Tucker Act does not

generally confer jurisdiction for actions seeking declaratory or injunctive relief.”).

Instead, and as explained in more detail below, the Court may award equitable

or other nonmonetary relief in Tucker Act cases in only three statutorily defined

circumstances: (1) in bid protest actions brought pursuant to 28 U.S.C. § 1491(b); (2) as

“incident of and collateral to” a monetary judgment, as set out in the first two sentences

of 28 U.S.C. § 1491(a)(2); and (3) for certain types of nonmonetary CDA claims, as

described in the last sentence of § 1491(a)(2).4 SMSI’s claims in its Amended Complaint

fit within none of those categories.

4See, e.g., Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998)

(“Although the Tucker Act has been amended to permit the Court of Federal Claims to grant

equitable relief ancillary to claims for monetary relief over which it has jurisdiction, see 28 U.S.C.

§§ 1491(a)(2), (b)(2), there is no provision giving the Court of Federal Claims jurisdiction to

grant equitable relief when it is unrelated to a claim for monetary relief pending before the

court.”); Synernet Corp. v. United States, 215 F.3d 1348 (Fed. Cir. 1999) (“Apart from exceptions

not applicable here, see 28 U.S.C. § 1491(a)(2), (b)(2), the Court of Federal Claims has no power

to grant equitable relief.”); Malcolm v. United States, 690 F. App’x 687, 689 (Fed. Cir. 2017) (per

curiam) (“The court cannot grant equitable relief unless such relief is ‘an incident of and

collateral to’ a money judgment.” (quoting 28 U.S.C. § 1491(a)(2))); Piotrowski v. United States,

722 F. App’x 982, 985 (Fed. Cir. 2018) (“[T]he Court of Federal Claims correctly held that it could

not provide equitable relief to correct [Plaintiff]’s military records because the requested relief

4

Indeed, aside from casting all the Tucker Act provisions together in a legal brew

to see whether an equitable relief golem might magically emerge, SMSI makes little

effort to demonstrate that the Court has the power to issue the preliminary injunction

SMSI seeks. SMSI “‘is the master of [its] complaint’ and [is] free to choose between legal

theories.” McNeil v. Cmty. Probation Servs., LLC, 945 F.3d 991, 996 (6th Cir. 2019)

(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987)). Having selected the

CDA route — and having failed to allege facts to support an action pursuant to 28

U.S.C. § 1491(b) — SMSI cannot obtain a preliminary injunction.

A. 28 U.S.C. § 1491(a) Does Not Provide This Court with Jurisdiction to

Grant Preliminary Injunctive Relief

The Court begins, as it must, with the Tucker Act’s plain text, as amended by the

CDA:

[1] To provide an entire remedy and to complete the relief

afforded by the judgment, the court may, as an incident of and

collateral to any such judgment, issue orders directing

restoration to office or position, placement in appropriate

duty or retirement status, and correction of applicable

records, and such orders may be issued to any appropriate

official of the United States. [2] In any case within its

jurisdiction, the court shall have the power to remand

appropriate matters to any administrative or executive body

or official with such direction as it may deem proper and just.

[3] The Court of Federal Claims shall have jurisdiction to

render judgment upon any claim by or against, or dispute

with, a contractor arising under section 7104(b)(1) of title 41,

including a dispute concerning termination of a contract,

rights in tangible or intangible property, compliance with cost

accounting standards, and other nonmonetary disputes on

which a decision of the contracting officer has been issued

under section 6 of that Act.

28 U.S.C. § 1491(a)(2).

The above-quoted, plain language of 28 U.S.C. § 1491(a)(2) demonstrates that this

Court lacks broad jurisdiction to issue equitable relief. Instead, § 1491(a) permits the

Court to issue only the following specific orders: (1) orders “directing restoration to

was not tied to a money judgment.”); Langan v. United States, 812 F. App’x 982, 987 (Fed. Cir.

2020) (per curiam) (“The Claims Court lacks general equity jurisdiction and can only award

equitable relief ‘incident of and collateral to’ a money judgment.” (quoting 28 U.S.C.

§ 1491(a)(2))).

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office or position”; (2) orders directing “placement in appropriate duty or retirement

status”; (3) orders directing the “correction of applicable records”; and (4) orders to

“remand appropriate matters to any administrative or executive body or official with

such direction as the Court may deem proper and just.” 28 U.S.C. § 1491(a)(2).

Moreover, such relief may be ordered only “to complete the relief afforded by the

[money] judgment” and “as an incident of and collateral to any such [money]

judgment.” Id. In other words, § 1491(a)(2) nowhere grants the Court the power to

issue a preliminary injunction — both because such relief is not in the short list of

allowable equitable relief, and because a preliminary injunction, by definition, cannot

be “incident of and collateral to” a final money judgment. Id.5

In keeping with the statute’s plain language, the Federal Circuit has interpreted

28 U.S.C. § 1491(a) to preclude this Court from granting injunctive relief outside of the

circumstances defined in the statute. See, e.g., Kanemoto v. Reno, 41 F.3d 641, 644–45

(Fed. Cir. 1994) (“The remedies available in [the Court of Federal Claims] extend only to

those affording monetary relief; the court cannot entertain claims for injunctive relief or

specific performance, except in narrowly defined, statutorily provided

circumstances[.]”), quoted in Columbus Reg’l Hosp. v. United States, 990 F.3d 1330, 1354

(Fed. Cir. 2021); see also Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep’t of Homeland

Sec., 490 F.3d 940, 943 (Fed Cir. 2007) (“In order for a claim to be brought under either

the Tucker Act or the Little Tucker Act, the claim must be for monetary relief; it cannot

be for equitable relief, except in very limited circumstances not at issue here.”); Cooper v.

United States, 860 F. App’x 742, 744 (Fed. Cir. 2021) (per curiam) (“the Court of Federal

Claims cannot entertain claims for injunctive relief, except in narrowly defined

circumstances”).

The Federal Circuit also has repeatedly emphasized that any equitable relief

pursuant to § 1491(a)(2) must be tied to, and in support of, a money judgment, further

precluding preliminary injunctive relief in this case. See, e.g., James v. Caldera, 159 F.3d

573, 580 (Fed. Cir. 1998) (“It is true that limited equitable relief sometimes is available in

Tucker Act suits. However, that equitable relief must be ‘an incident of and collateral

to’ a money judgment.” (quoting 28 U.S.C. § 1492(a)(2))). In James, the Federal Circuit

summarized the statute’s requirement succinctly: “Stated another way, the Court of

Federal Claims has no power ‘to grant affirmative nonmonetary relief unless it is tied

and subordinate to a money judgment.’” Id. (quoting Austin v. United States, 206 Ct. Cl.

5The limiting language of 28 U.S.C. § 1491(a)(2) stands in stark contrast to that of 28 U.S.C.

§ 1491(b)(2), which provides the Court with broad injunctive relief power, albeit with respect to

a narrower class of actions defined in § 1491(b). 28 U.S.C. § 1491(b)(2) (providing that “the

court[] may award any relief that the court considers proper, including declaratory and injunctive relief

except that any monetary relief shall be limited to bid preparation and proposal costs”

(emphasis added)). The type of relief the Court may order thus varies depending on whether

an action is brought pursuant to 28 U.S.C. § 1491(a) or § 1491(b).

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719, 723 (1975)), cited in Shelden v. United States, 742 F. App’x 496, 502 (Fed. Cir. 2018)

(per curiam); see also Bobula v. Dep’t of Justice, 970 F.3d 854, 859 (Fed. Cir. 1992) (“While

limited equitable relief is sometimes available in Tucker Act suits, the equitable relief

must be incidental to and collateral to a claim for money damages.”).

The Court of Federal Claims, of course, has faithfully followed the Federal

Circuit’s instructions. See, e.g., Rodgers v. United States, 153 Fed. Cl. 538, 543 (2021)

(denying plaintiff’s various requests for equitable relief because “[t]his Court’s ability to

grant equitable relief under the Tucker Act is limited” and “[t]he equitable relief

Plaintiff requests is plainly not incidental of and collateral to money damages”);

Meidinger v. United States, 146 Fed. Cl. 491, 494 (2020) (“Furthermore, this court lacks

jurisdiction over actions seeking equitable relief, such as a declaratory or injunctive

remedy, that are not brought pursuant to the specific grants of authority to this court to

issue such relief.”); Looks Great Servs., Inc. v. United States, 145 Fed. Cl. 324, 3228 (2019)

(“in cases not involving bid protests the Court of Federal Claims may only grant

equitable relief when ‘it is tied and subordinate to a money judgment’” (quoting

Stephanatos v. United States, 81 Fed. Cl. 440, 445 (2008), aff’d, 306 F. App’x 560 (Fed. Cir.

2009))); Casiano v. United States, 141 Fed. Cl. 528, 541 (2019) (denying plaintiffs “the kind

of broad equitable relief requested in their complaint — i.e., an order ‘enjoin[ing] the

[United States Public Health Service] from its unlawful practices described in th[e]

complaint’” because “[t]his Court has limited authority to order injunctive relief”);

Porter v. United States, 131 Fed. Cl. 552, 560 (2017) (holding that the Court of Federal

Claims’ “power to order the correction of a service member’s military records depends

on the correction being ‘incidental’ to an award of monetary relief, usually in the form

of increased payments” (first citing Pearl v. United States, 111 Fed. Cl. 301, 308 (2013);

and then citing Haskins v. United States, 51 Fed. Cl. 818, 822 (2002)); Teztlaff v. United

States, 2015 WL 7585333, at *11 (Fed. Cl. Nov. 25, 2015) (“The Court of Federal Claims

cannot entertain claims for injunctive relief, except in four statutorily defined

circumstances. . . . None of those circumstances applies here. . . . Because plaintiff’s

request does not fall into one of these exceptions, her motion is denied.” (citations

omitted)); Laughlin v. United States, 124 Fed. Cl. 374, 382 (2015) (“Under the Tucker Act,

the court has authority to award equitable relief in the form of a declaratory judgment

‘only when such an award would be ancillary to an affirmative obligation of the federal

government to pay money damages.’” (quoting Anderson v. United States, 59 Fed. Cl.

451, 456 (2004))).

Finally, the third sentence of 28 U.S.C. § 1491(a)(2) provides this Court with

jurisdiction to award some types of nonmonetary relief — but not preliminary

injunctions — where a proper nonmonetary CDA claim forms the basis of a plaintiff’s

complaint:

The Court of Federal Claims shall have jurisdiction to render

judgment upon any claim by or against, or dispute with, a

contractor arising under section 7104(b)(1) of title 41, including

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a dispute concerning termination of a contract, rights in

tangible or intangible property, compliance with cost

accounting standards, and other nonmonetary disputes on which

a decision of the contracting officer has been issued under section

6 of that Act.

28 U.S.C. § 1491(a)(2) (emphasis added). Nothing in this third sentence of 28 U.S.C.

§ 1491(a)(2), however, expressly permits the Court to issue preliminary nonmonetary

relief. To the contrary, it provides the Court with jurisdiction only to render

“judgment” upon “any claim” that has been presented to a contracting officer. Id.; 41

U.S.C. § 7103(a)(1) (“Each claim by a contractor against the Federal Government relating

to a contract shall be submitted to the contracting officer for a decision.”).

Nor does the definition of “claim” under the CDA include preliminary

injunctions. While the CDA itself does not define “claim,” the Federal Circuit has held

“that the definition of the term ‘claim’ in the [the Federal Acquisition Regulation

(“FAR”)] governs.” Todd Const., L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011)

(citing H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564–65 (Fed. Cir. 1995)). The FAR, in

turn, defines “claim” as “a written demand or written assertion by one of the

contracting parties seeking, as a matter of right, the payment of money in a sum certain,

the adjustment or interpretation of contract terms, or other relief arising under or

relating to this contract.” FAR 52.233-1(c); see also FAR. 2.101 (defining “claim”). This

Court has recognized that preliminary injunctions do not fit within the FAR’s definition

of a proper CDA claim. See, e.g., CanPro Invs. Ltd. v. United States, 120 Fed. Cl. 17, 23

(2015) (“[T]he CDA does not provide for interim injunctive relief while a claim is

pending.”); Davis Grp., Inc. v. United States, 2012 WL 2686053 at *1, *3 (Fed. Cl. July 6,

2012) (denying plaintiff’s “preliminary injunction in conjunction with [CDA] claims”

absent “express statutory authority for the Court of Federal Claims to issue injunctions

in this circumstance”).6

The law as summarized above is well-settled. See, e.g., Vernon J. Edwards,

Postscript I: Breach of Loss of the Fair Opportunity to Compete, 20 No. 12 Nash & Cibinic

Rep. ¶ 59 (2006) (“[U]nder the CDA, a board or court cannot . . . issue a temporary

restraining order, or provide injunctive relief.”), quoted in Vanquish Worldwide, LLC v.

6 Cf. Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir. 1999) (“The discretion

to grant [final] declaratory relief only in limited circumstances allows the court or board to

restrict the occasions for intervention during contract performance to those involving a

fundamental question of contract interpretation or a special need for early resolution of a legal

issue.”). In Alliant, 178 F.3d at 1263, the Federal Circuit addressed the availability of declaratory

relief as part of a final judgment on a proper nonmonetary claim. Moreover, in that case, the

contractor sought declaratory relief with respect to its own contract with the government, id.,

but did not seek equitable relief with respect to a procurement or another party’s contract with

the government; Alliant did not involve a § 1491(b) action.

8

United States, 147 Fed. Cl. 390, 398 (2020); Digital Techs., Inc. v. United States, 89 Fed. Cl.

711, 728 (2009); BLR Grp. of Am., Inc. v. United States, 84 Fed. Cl. 634, 647 (2008)); Ralph

C. Nash & John Cibinic, Postscript: Nonmonetary Claims, 19 No. 8 Nash & Cibinic Rep. ¶

38 (2005) (explaining that “neither the court nor the boards have the power to grant

injunctive relief” in CDA cases).7

In sum, the statute’s plain language and binding Federal Circuit precedent — as

well as this Court’s decisions — all make clear that we cannot award preliminary

injunctive relief in cases brought pursuant to § 1491(a), and particularly not in CDA

cases.

B. SMSI Cannot Circumvent 28 U.S.C. § 1491(a)(2) to Obtain Preliminary

Injunctive Relief

Despite the clarity of 28 U.S.C. § 1491(a)(2) and binding precedent interpreting

that statutory provision, SMSI asserts that this Court has the power to grant SMSI

preliminary injunctive relief. The Court rejects SMSI’s arguments.

First, SMSI asserts that 28 U.S.C. § 1491(a)(2) “authorizes the Court to ‘provide an

entire remedy’ to a party and ‘complete the relief afforded’ by any judgment this Court

may issue.” Pl. Mem. at 5 (quoting § 1491(a)(2)); see also Pl. Reply at 5. SMSI misreads

the statute. The phrases “entire remedy” and “complete the relief” simply describe the

purposes for which the Court can grant the specific types of relief the statute identifies in

the list that follows (e.g., the correction of records, remand to administrative agency).

Preliminary injunctions are not included in that list. See, e.g., Teztlaff, 2015 WL 7585333,

at *11; Cooper, 860 F. App’x at 744.

Second, SMSI argues that “a final judgment need not precede any other ‘remedy’ or

‘relief’” because § 1491(a)(2) “places no temporal restraints on . . . the relief this Court is

empowered to afford.” Pl. Mem. at 5 (quoting 28 U.S.C. § 1491(a)(2)). The statute’s

7 The Court also notes that the boards of contract appeals take the same view of the CDA. See,

e.g., Heroes Hire LLC v. Dep’t of Veterans Affs., CBCA 7195, ¶ 37,940 (Oct. 7, 2021) (holding that

the United States Civilian Board of Contract Appeals (“CBCA”) “lack[s] th[e] type of injunctive

power” to “direct the VA to forward invoices” to a disbursement office and pay the contractor

directly because “[t]he CDA does not allow [the CBCA] to grant injunctive relief”); Tiya Support

Servs., ASBCA No. 62648, 21-1 B.C.A. ¶ 37901 n.3 (July 22, 2021) (“The Board has long held that

it does not have jurisdiction to entertain injunctive relief.”); Kostas Greek Food – Zorbas, ASBCA

No. 62213, 21-1 B.C.A. ¶ 37750 (Nov. 23, 2020) (“To the extent Kostas’ notice of appeal and

complaint can be read to seek injunctive relief or specific performance, such requests are

beyond the jurisdiction of the Board.”); Puma Energy Honduras, S.A. De C.V., ASBCA No. 61966,

20-1 B.C.A. ¶ 37507 (Jan. 14, 2020) (holding that the Board had no jurisdiction to decide requests

for injunctive relief); Applied Ordnance Tech., Inc., ASBCA No. 51297, ASBCA No. 51543, 98-2

B.C.A. ¶ 30,023 (Sept. 17, 1998) (“the Board lacks jurisdiction over suits seeking injunctive relief,

or specific performance”).

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plain language, however, precludes SMSI’s reading, as the statute provides the Court

with authority to issue the specific relief mentioned “to complete the relief afforded by

the judgment.” 28 U.S.C. § 1491(a)(2) (emphasis added). Merriam-Webster defines the

verb form of “complete” as “to bring to an end and especially into a perfected state.”

Complete, Merriam-Webster, https://www.merriam-webster.com/dictionary/complete

(last visited Nov. 22, 2021) (emphasis added). Even without resorting to any dictionary

definitions, however, the Court finds it obvious that there first must be a judgment, in

order for any other relief to be “incident of and collateral to” it. 28 U.S.C. § 1491(a)(2).

SMSI’s assertion that the statute “places no temporal restraints” on the relief this Court

can provide contradicts the statute’s plain language.

Federal Circuit precedent also precludes SMSI’s interpretation of § 1491(a). See

James, 159 F.3d at 580 (“the Court of Federal claims has no power ‘to grant affirmative

nonmonetary relief unless it is tied and subordinate to a money judgment’” (quoting

Austin, 206 Ct. Cl. at 723)). SMSI argues that a preliminary injunction would meet the

James standard because it is issued only after the Court evaluates the likelihood of

success on the merits. Pl. Reply at 6–7. According to SMSI, a preliminary injunction is

“subordinate to” a judgment because the latter can undo the preliminary relief. Id.

Here, as elsewhere, SMSI ignores the rest of the statute — SMSI fails, for example, to

address the phrase “complete the relief.” 28 U.S.C. § 1491(a)(2). SMSI also ignores the

Federal Circuit’s instruction that any nonmonetary relief be “tied . . . to a money

judgment.” James, 159 F.3d at 580 (quoting Austin, 206 Ct. Cl. at 723).

To support SMSI’s theory that 28 U.S.C. § 1491(a)(2) permits this Court to grant

preliminary injunctive relief in a CDA case, SMSI misapplies a single line from a 76-

year-old decision of the United States Supreme Court. Pl. Mem. at 6 (discussing De

Beers Consolidated Mines v. United States, 325 U.S. 212, 220 (1945)). SMSI is correct that, in

De Beers, the Supreme Court noted that “[a] preliminary injunction is always

appropriate to grant intermediate relief of the same character as that which may be

granted finally.” 325 U.S. at 220. But, even assuming the nonmonetary relief specified

in 28 U.S.C. § 1491(a)(2) may be characterized as injunctive relief, the line SMSI quotes

from De Beers does not help SMSI for the simple reason that its Amended Complaint

does not seek permanent injunctive relief.

As a general matter, plaintiffs seek preliminary injunctions to preserve the status

quo so that if they ultimately achieve success on the merits, they remain well-positioned

to secure permanent injunctive relief. See, e.g., Continental Serv. Grp., Inc. v. United

States, 722 F. App’x 986, 994 (Fed. Cir. 2018) (“The function of preliminary injunctive

relief is to preserve the status quo pending a determination of the action on the merits.”

(quoting Litton Sys., Inc. v. Sundstrand Corp., 750 F.2d 952, 961 (Fed. Cir. 1984))).8 Thus,

8See also PGBA v. United States, 389 F.3d 1219, 1229, 1232 (Fed. Cir. 2004) (affirming denial of

injunctive relief where the trial court “considered [plaintiff’s] failure to seek a preliminary

injunction as a factor weighing against a grant of injunctive relief”); Aero Spray v. United States,

10

preliminary injunction motions must seek “intermediate relief of the same character as

that which may be granted finally.” De Beers, 325 U.S. at 220 (emphasis added); see also

Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (“A district court should not issue

an injunction when the injunction in question is not of the same character, and deals

with a matter lying wholly outside the issues in the suit.”), cited in Bruce v. Reese, 431 F.

App’x 805, 806 n.1 (11th Cir. 2011) (per curiam), Jones v. Sec. of Pa. Dep’t of Corrs., 589 F.

App’x 591, 594 (3d Cir. 2014) (per curiam), Pac. Radiation Oncology, LLC v. Queen’s Med.

Ctr., 810 F.3d 631, 636 (9th Cir. 2015); 11A Wright & Miller, Federal Practice &

Procedure, § 2947, Purpose and Scope of Preliminary Injunctions (3d ed.) (“Conversely,

a preliminary injunction may not issue when it is not of the same character as that

which may be granted finally and when it deals with matter outside the issues in the

underlying suit.”).

In other words, a motion for preliminary injunctive relief must “seek[] to enjoin

the action that the complaint alleges is unlawful.” Bird v. Barr, 2020 WL 4219784, at *2

(D.D.C. July 23, 2020) (emphasis in original). SMSI’s Amended Complaint does not

request permanent injunctive relief. See Am. Compl. at 19. Instead, SMSI seeks relief

that is characteristic of a CDA claim — that the Court: (1) convert the termination for

default to a termination for convenience; (2) award termination costs or unpaid

performance costs to SMSI; (3) award damages to SMSI; and (4) award SMSI attorneys’

fees and costs. Id. None of this requested relief has anything to do with the temporary

restraining order or preliminary injunction SMSI seeks at this stage of the case.9

The government correctly notes yet another flaw with SMSI’s reliance on De

Beers. In that case, “the Supreme Court reversed an order granting an injunction because

it was ‘not authorized either by statute [the Sherman and Wilson Acts] or by the usages

of equity.’” Def. Resp. at 8 (emphasis added) (quoting De Beers, 325 U.S. at 223). The

same reasoning applies here — nothing in 28 U.S.C. § 1491(a)(2) allows this Court to

grant a preliminary injunction. Here, as in De Beers, the injunction sought is “not

authorized . . . by statute.” De Beers, 325 U.S. at 223.

Third, SMSI asserts that the Court of Federal Claims can grant preliminary

injunctive relief in this case because the Federal Circuit “has described this Court’s

jurisdiction under 28 U.S.C. § 1491(a) as ‘comprehensive’ and ‘broad.’” Pl. Mem. at 6

(citing Todd Const., 656 F.3d at 1311). SMSI’s invocation of that case does not help its

-- Fed. Cl. --, 2021 WL 5023371, at *25 (Oct. 28, 2021) (noting that “plaintiff did not seek a

preliminary injunction or secure an agreed-upon stay of the challenged contract awards,

suggesting a lack of irreparable harm” (citing PGBA, 389 F.3d at 1229, 1232)).

9 Nor does SMSI’s request for “a declaratory judgment that the VA did not comply with

applicable OSHA regulations,” Am. Compl. at 19, have any connection with the preliminary

injunction SMSI seeks, even assuming the Court has jurisdiction to issue such a declaratory

judgment (should SMSI succeed on the merits of its CDA claim).

11

own. The Federal Circuit in Todd Construction used the words “comprehensive” and

“broad” to describe what qualifies as a proper CDA claim, not the type of relief available

under the CDA. See 656 F.3d at 1311 (explaining that “Congress’ overall purpose to

confer comprehensive jurisdiction under the CDA confirms that we should read the

definition of ‘claim’ broadly” and finding that “the broad language of the statute and

FAR provision supports a broad reading of the term ‘claim.’”).

While SMSI asserts that no Supreme Court or Federal Circuit decision addresses

whether this Court can grant preliminary injunctive relief pursuant to 28 U.S.C.

§ 1491(a)(2), this is not “an open question of law,” as SMSI asserts. Pl. Mem. at 6–7. For

starters, SMSI simply ignores the Federal Circuit cases holding that § 1491(a)(2) restricts

the relief available under that statutory subsection to the types of relief expressly listed

therein. See, e.g., Kanemoto, 41 F.3d at 644–45 (“The remedies available at [the Court of

Federal Claims] extend only to those affording monetary relief; the court cannot

entertain claims for injunctive relief or specific performance, except in narrowly

defined, statutorily provided circumstances[.]”), quoted in Columbus Regional Hosp., 990

F.3d at 1354; Teztlaff, 2015 WL 7585333, at *11 (“The Court of Federal Claims cannot

entertain claims for injunctive relief, except in four statutorily defined

circumstances. . . . None of those circumstances applies here. . . . Because plaintiff’s

request does not fall into one of these exceptions, her motion is denied.” (citations

omitted)).

SMSI further asserts that “[t]his issue has come before the Appeals Court at least

twice in the past ten years — both times, the Appeals Court has declined to address it,

resolving those cases on other grounds.” Pl. Mem. at 7 (citing Todd Const., 656 F.3d at

1311 n.3,10 and CanPro Invs. Ltd. v. United States, 120 Fed. Cl. 17, 22 (2015)).

Preliminarily, the Court notes that CanPro Investments is a decision of this Court,

and not of the Federal Circuit. SMSI thus relies upon, at most, a single Federal Circuit

decision, but that case — Todd Construction — also does not help SMSI. In Todd

Construction, the Federal Circuit declined to address a very specific question: “whether

an injunction was available pursuant to the [Court of Federal Claims’] ‘power to remand

appropriate matters to any administrative or executive body or official with such discretion as

it may deem proper and just.’” 656 F.3d at 1311 n.3 (emphasis added) (quoting 28

U.S.C. § 1491(a)(2)). SMSI, however, never attempts to explain how the preliminary

injunction it seeks might fall under this Court’s remand authority pursuant to

§ 1491(a)(2).

The facts of Todd Construction further undermine SMSI’s position. In Todd

Construction, the plaintiff’s complaint involved a challenge to the government’s

performance evaluation, making the entire nature of the plaintiff’s CDA claim

SMSI appears to cite the incorrect page number and footnote in Todd Construction. The

10

Court’s citations correct the apparent error.

12

nonmonetary. See 656 F.3d at 1309 (“Todd filed a complaint in the [Court of Federal

Claims] . . . seeking, inter alia, a declaratory judgment.”). In contrast, SMSI’s CDA claim

seeks primarily monetary relief. See Am. Compl. at 19 (requesting that the Court

“[c]onvert the VA’s termination . . . for default to a termination for Defendant’s

convenience,” “[a]ward [SMSI] termination costs . . . of $719,003.39,” “award [SMSI]

$533,154.78 in unpaid performance costs,” and “[a]ward [SMSI] $142,884.95 in

damages.”).11

Nor, for that matter, is there any hint in Todd Construction that this Court may

utilize the remand authority in § 1491(a)(2) to issue a preliminary injunction. And even

if the Court were to assume, for the sake of argument, that the Federal Circuit in Todd

did decline to address the question of preliminary injunctive relief pursuant to

§ 1491(a)(2), SMSI fails to address, much less distinguish, the cases discussed supra that

limit the nonmonetary relief available under § 1491(a) to the types specifically identified

in that provision.

Furthermore, for a CDA claim to be properly before this Court, it must have been

submitted to the contracting officer for a decision. See 41 U.S.C. § 7103(a)(1) (“Each

claim by a contractor against the Federal Government relating to a contract shall be

submitted to the contracting officer for a decision.”). The Court has reviewed the claim

SMSI submitted to the contracting officer. See ECF No. 7-4. That claim requests relief

related only to SMSI’s now-terminated contract with the VA, and not the alleged

replacement contract. See id. at 2 (requesting “[c]onversion of the termination for

default . . . to a termination for convenience,” “$719,003.39 in associated termination

costs,” “$142,884.95 for payments due,” and “[a] formal declaration” related to alleged

violations of OSHA regulations related to asbestos removal). SMSI’s request for relief

related to the replacement contract thus is not part of its CDA claim here, even

assuming for the sake of argument that it could be the subject of a proper CDA claim.12

Finally, SMSI appears to have submitted a CDA claim with the required “sum

certain” — a classic monetary CDA claim. See, e.g., M. Maropakis Carpentry, Inc. v.

United States, 609 F.3d 1323, 1329 (Fed. Cir. 2010) (holding that plaintiff’s letter to

11As noted above, the Amended Complaint also requests that the Court “[i]ssue a declaratory

judgment that the VA did not comply with applicable OSHA regulations.” Am. Compl. at 19.

But even assuming that the Court has jurisdiction to issue such declaratory relief as part of a

final judgment, SMSI’s pending request for preliminary injunctive relief has no connection to

the declaratory judgment SMSI seeks.

12Although an “interested party” may challenge a government procurement action, 28 U.S.C.

§ 1491(b), a CDA claim may be filed only by a contractor with respect to its contract that

establishes privity with the government. United States v. Johnson Controls, Inc., 713 F.2d 1541,

1550 (Fed. Cir. 1983) (Tucker Act's jurisdictional “concept of privity is mirrored in the CDA”);

Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009); cf. Johnson Lasky Kindelin Architects,

Inc. v. United States, 151 Fed. Cl. 642, 660 (2020).

13

contracting officer was “not valid . . . under the CDA” because, inter alia, “it did not

state a sum certain”). But even if SMSI had submitted a CDA claim for nonmonetary

relief, the Court would lack jurisdiction over at least two of the three types of relief

requested in the TRO-PI Motion because such nonmonetary relief in this case would be

improper on the facts pled. See Securiforce Int’l Am., LLC v. United States, 879 F.3d 1354,

1362 (Fed. Cir. 2018) (“If ‘the only significant consequence’ of the declaratory relief

sought ‘would be that [the plaintiff] would obtain monetary damages from the

government,’ the claim is in essence a monetary one.” (quoting Brazos Elec. Power Coop.,

Inc. v. United States, 144 F.3d 784, 787 (Fed. Cir. 1998))).

In Securiforce, the plaintiff filed suit pursuant to the Tucker Act and the CDA,

seeking a declaration that its contract for fuel delivery, which the government

terminated in part for default, “was improperly terminated.” 879 F.3d at 1358. The

Federal Circuit held that granting equitable relief via a declaratory judgment “would

violate ‘the traditional rule that courts will not grant equitable relief when money

damages are adequate.’” Id. at 1362 (quoting Alliant, 178 F.3d at 1271)). Here, the

gravamen of SMSI’s Amended Complaint is a challenge to the government’s

termination for default; should SMSI succeed on the merits, SMSI’s remedy is a

conversion to a termination for convenience and associated money damages, but does

not include nonmonetary relief. See Securiforce, 879 F.3d at 1360 (“Securiforce’s claim

concerning the termination for convenience, although styled as one for declaratory

relief, would — if granted — yield only one significant consequence: it would entitle

Securiforce to recover money damages from the government.”); FAR 52.249-10(c) (“If,

after termination . . . it is determined that the Contractor was not in default, or that the

delay was excusable, the rights and obligations of the parties shall be the same as if the

termination had been issued for the convenience of the Government.”); Bowman Const.

Co. v. United States, 154 Fed. Cl. 127, 141 (2021) (“The remedy for a successful challenge

to a termination for default is a conversion of the default termination to a termination

for the convenience of the government which carries with it a monetary remedy —

termination for convenience damages.”).

Accordingly, even if SMSI had submitted a CDA claim to the cognizant

contracting officer seeking nonmonetary relief— i.e., to prevent the government from

entering into a completion (or other follow-on) contract or authorizing work under one,

see TRO-PI Mot. at 1 — this Court would likely lack jurisdiction over such a CDA claim

in any event. Securiforce, 879 F.3d at 1361 (plaintiff cannot rely on CDA provisions

providing this Court with “jurisdiction over some nonmonetary disputes . . . where, as

here, the party is in essence seeking monetary relief”).13

13The Court acknowledges that, pursuant to Todd Construction, it is conceivable that a CDA

claim challenging a termination for default may seek nonmonetary relief to correct government

records regarding the nature of the termination and thereby limit the government from noticing

other agencies of a default if the Court finds it improper, see TRO-PI Motion at 1–2. In this case,

14

C. SMSI Cannot Invoke § 1491(b) in This CDA Case to Obtain Preliminary

Injunctive Relief

SMSI contends that § 1491(b) provides this Court jurisdiction to grant

preliminary injunctive relief. See Pl. Mem. at 7–12; Pl. Reply at 9–12. This argument

fails for several reasons.

At the outset, the Court readily acknowledges that nothing precludes a party

from including both a CDA claim and an action pursuant to § 1491(b) in the same

complaint. See, e.g., Taylor Consultants, Inc. v. United States, 90 Fed. Cl. 531, 537 (2009)

(describing a complaint that asserted “a CDA claim . . . for improper or bad faith

termination” and “a post-award protest . . . under 28 U.S.C.§ 1491(b)”). But in SMSI’s

Amended Complaint, SMSI unambiguously asserts only a CDA claim. See Am. Compl.

¶ 12 (“This Court has jurisdiction over this action pursuant to the Contract Disputes Act

of 1978 (41 U.S.C. § 7101 et seq.) and the Tucker Act (28 U.S.C. § 1491).”). Indeed, SMSI

reaffirmed that fact during the Court’s initial August 16, 2021 status conference. Tr.

7:16–22 (“THE COURT: But you do agree that there is no 1491(b) claim here at all,

correct? [PLAINTIFF]: Related to bids, Your Honor, no. THE COURT: Well, related to

a procurement action. This is a pure CDA claim in your Complaint. Correct?

[PLAINTIFF]: Yes, Your Honor.”). This concession is binding. See, e.g., Minter v. Wells

Fargo Bank, N.A., 762 F.3d 339, 347 (4th Cir. 2014) (“‘[A] lawyer’s statements may

constitute a binding admission of a party[]’ if the statements are ‘deliberate, clear, and

unambiguous[.]’” (quoting Fraternal Order of Police Lodge No. 89 v. Prince George’s Cnty.,

Md., 608 F.3d 183, 190 (4th Cir. 2010))); Checo v. Shineski, 748 F.3d 1373, 1378 n.5 (Fed.

Cir. 2014) (citing cases for the proposition that oral admissions should bind parties);

Hous. Auth. of Slidell v. United States, 149 Fed. Cl. 614, 633 n.34 (2020) (citing Minter and

Checo); Penna v. United States, 153 Fed. Cl. 6, 25 n.25 (2021) (citing Minter).

As a result, the Court reads SMSI’s Amended Complaint to assert only a CDA

claim. SMSI’s attempt in its briefs to recast its Amended Complaint as a § 1491(b) action

is rejected. But even if the Court were to ignore SMSI’s characterization of its own

Amended Complaint, the Court cannot discern any § 1491(b) action therein.

Consistent with Federal Circuit precedent, this Court looks to substance over

form when interpreting SMSI’s Amended Complaint: “Our inquiry, however, does not

end with the words of the complaint, however instructive they may be, for we still must

‘look to the true nature of the action in determining the existence or not of

jurisdiction.’” James, 159 F.3d at 579 (quoting Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed.

Cir. 1994)). Under this standard, SMSI’s Amended Complaint contains a § 1491(b)

action only if it alleges facts, which, if true, demonstrate: “[1] objections to a solicitation,

however, SMSI did not include such a request in its CDA claim submitted to the contracting

officer. Whether such relief nevertheless is available “as an incident of and collateral to” any

final money judgment, pursuant to 28 U.S.C. § 1491(a), is a question for a later date.

15

[2] objections to a proposed award, [3] objections to an award, [or 4] objections related

to a statutory or regulatory violation so long as these objections are in connection with a

procurement or proposed procurement.” System App. & Techs., Inc. v. United States, 691

F.3d 1374, 1380–81 (Fed. Cir. 2012), quoted in Tolliver Grp., 151 Fed. Cl. at 84 n.11; see also

28 U.S.C. § 1491(b)(1). The Court cannot locate any set of facts within SMSI’s Amended

Complaint constituting an action pursuant to 28 U.S.C. § 1491(b).

SMSI appears to argue that the following allegations in its Amended Complaint

qualify as an action pursuant to 28 U.S.C. § 1491(b): (1) “that Defendant had

communicated with [SMSI’s] surety regarding the potential ‘takeover’ of the contract at

issue in this case, as well as Defendant’s and the surety’s efforts to find a ‘completion

contractor[]’ to perform the follow-on ‘procurement’”; (2) “that two potential offerors

had been identified to complete the remaining work contemplated under the original

contract”; and (3) “that Defendant pre-emptively excluded [SMSI] from completing the

remaining work under the anticipated completion contract.” Pl. Mem. at 8 (discussing

Amended Complaint ¶¶ 89-97). None of these allegations — individually or

collectively — constitutes a § 1491(b) action. The Court agrees with the government

that “[t]he mere fact that the complaint includes a cursory discussion of the alleged

circumstances of a follow-on, or completion, contract does not transform this CDA case

into a bid protest under § 1491(b).” Def. Resp. at 11. The last allegation, regarding

SMSI’s having been excluded from the “remaining work under the anticipated

completion contract,” may be consistent with a possible § 1491(b) action, but such an

action quite simply has not been pled. Perry v. United States, 149 Fed. Cl. 1, 7 (2020)

(granting government’s motion to dismiss, pursuant to both RCFC 12(b)(1) and 12(b)(6),

because “a plaintiff must plead facts, not conclusory assertions of law” and explaining

that “[t]o the extent any of [plaintiff’s] claims fall within this Court’s jurisdiction, he

fails to allege sufficient facts — as opposed to conclusory legal assertions — which state

a claim upon which relief can be granted”), aff’d, 2021 WL 2935075 (Fed. Cir. July 13,

2021); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009) (conclusory allegations “are not entitled to the assumption of truth”).

Although SMSI attempts to remedy its omission(s) in its motion briefing, a party

cannot revise its operative complaint in that manner. See, e.g., McGrath v. United States,

85 Fed. Cl. 769, 772 (2009) (“This court does not possess jurisdiction to hear claims

presented for the first time in responsive briefing.”); Jackson v. United States, 2021 WL

5066589, at *4 n.8 (Fed. Cl. Nov. 1, 2021) (“Plaintiff cannot amend his complaint via his

response brief[.]” (citing RCFC 15(a))); Dakota Tribal Indus. v. United States, 34 Fed. Cl.

295, 298 n.2 (1995) (holding that “the court cannot consider the merits of” a theory

because “the complaint fail[ed] to ground plaintiff’s claims on this basis”); see also RCFC

15(a) (noting that after a party amends a pleading once as a matter of course, “a party

may amend its pleading only with the opposing party’s written consent or the court’s

leave”); cf. S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,

16

713 F.3d 175, 184 (4th Cir. 2013) (“It is well-established that parties cannot amend their

complaints through briefing or oral advocacy.”).14

The other allegations within SMSI’s Amended Complaint support only a CDA

claim. While SMSI argues that paragraphs 99–106 of its Amended Complaint — under

the heading “Count One: Improper Termination for Default” — qualify as an alleged

violation of a statute or regulation related to a procurement, see Pl. Reply at 10–11, that

count constitutes a classic CDA claim. See, e.g., Securiforce, 879 F.3d at 1358 (holding that

a claim seeking a declaration that termination for default was improper is a monetary

CDA claim).

SMSI further alleges that the VA violated FAR 49.402-3 (“Procedure for default”),

Pl. Reply at 10–11, but SMSI cannot transform this CDA claim into a § 1491(b) claim.

The violation SMSI alleges relates to SMSI’s contract with the government and thus is a

contract dispute properly decided as a CDA claim, pursuant to § 1491(a), and does not

support an action pursuant to § 1491(b). SMSI relies on two cases — Systems Application

& Technologies v. United States, 691 F.3d 1374 (Fed. Cir. 2012), and Turner Construction v.

United States, 94 Fed. Cl. 561 (2010) — but both are inapposite.

SMSI invokes Systems Application to argue that the Federal Circuit has defined

“procurement” to include “all stages of the process of acquiring property or services,

beginning with the process for determining a need for property or services.” Pl. Reply

at 11 (quoting Systems Application, 691 F.3d at 1381). SMSI argues that the VA’s alleged

violation of termination procedures qualifies as an alleged violation of a procurement

regulation because the purported violation “directly relates to the agency’s ‘need for’ a

completion contract, as there would be no need for a completion contract but for the

VA’s termination of the predecessor Contract.” Pl. Reply at 11.

The facts of Systems Application, however, do not support SMSI’s position.

Systems Application involved a plaintiff that had received a contract award and

protested the agency’s proposed corrective action for that same procurement. 691 F.3d

at 1378–80. The plaintiff in its complaint directly objected to the agency’s procurement

procedure:

In this case, SA–TECH objected to a solicitation and alleged

violations of statutes and regulations governing the

procurement process. The Army has not shown that this

protest has no ‘connection with a procurement.’ Rather SA–

14The Court notes that SMSI remains free to seek leave to file yet another amended complaint,

this time to include an action pursuant to 28 U.S.C. § 1491(b). The Court further notes that the

VA apparently entered into a replacement contract on October 28, 2021. See ECF No. 21.

Whether SMSI may qualify as an “interested party” with respect to that contract remains to be

seen, but SMSI’s Amended Complaint does not do so.

17

TECH’s complaint specifically challenged the Army’s announced

decision to amend or revise the solicitation — an

unambiguous objection ‘to a solicitation’ covered by the

Tucker Act. SA–TECH also alleged violations of the Service

Contract Act and procurement regulations — another basis

for jurisdiction.

Id. at 1381 (emphasis added) (quoting 28 U.S.C. § 1491(b)(1)). In other words, the

plaintiff’s objections in its complaint challenged a solicitation. In contrast, SMSI objected

only to termination procedures followed with respect to SMSI’s already awarded

contract, and not to an agency’s decision regarding a new procurement.

Turner Construction is similarly distinguishable. SMSI asserts that the plaintiff in

Turner “challenged a decision by the [agency] to ‘strip’ [plaintiff] of a recently awarded

contract and to ‘re-procure’ the same ‘with [plaintiff] eliminated from the competition.’”

Pl. Reply at 12 (quoting 94 Fed. Cl. at 563). In that case, however, the plaintiff’s action

was a bid protest pursuant to 28 U.S.C. § 1491(b) and expressly included a challenge to

the agency’s decision to re-procure the contract. 94 Fed. Cl. at 563, 573 (explaining that

“[t]he GAO . . . recommended that the Army strip [plaintiff] of the contract . . . and re-

procure [it]” and noting that plaintiff “argue[d] that the [agency’s] decision to

implement the recommendation of the GAO was arbitrary and capricious”). The case,

thus, was focused on the agency’s allegedly improper procurement action, but was not

a claim for “relief arising under or relating to the [plaintiff’s] contract.” FAR 2.101

(defining “claim” for CDA purposes). SMSI’s Amended Complaint, in contrast, does

not contain a bid protest action pursuant to § 1491(b); instead, as SMSI admitted, its

Amended Complaint represents a “pure CDA claim” related to the termination of its

contract. Tr. 7:20–22. If SMSI is correct that the government improperly terminated

SMSI’s contract for default, SMSI’s remedy is a monetary one — in the form of a

conversion to a termination for convenience (and possible money damages) — and not

an injunction reinstating the contract (or precluding a new procurement). On that note,

the plaintiff in Turner also “request[ed] that the Court issue a permanent injunction

ordering restoration of Turner’s contract for the . . . project and barring the [agency]

from re-procuring the contract,” 94 Fed. Cl. at 585, something that SMSI’s Amended

Complaint does not do. Am. Compl. at 19.

In any event, as explained above, Securiforce demonstrates (and the FAR

provides) that only monetary relief is available for a claim challenging a termination for

default. In other words, SMSI cannot — via ipse dixit in its briefing — transmogrify a

proper CDA claim for money damages into a bid protest-type action for equitable relief

under 28 U.S.C. § 1491(b).

Finally, SMSI’s contention that “this Court has found jurisdiction under 28 U.S.C.

§ 1491(b) to rule upon a wide variety of cases,” Pl. Mem. at 10, does not support SMSI’s

request for a preliminary injunction. None of the cases upon which SMSI relies involve

18

a situation where the Court considered issuing injunctive relief pursuant to § 1491(b) for

a CDA claim, challenging a default termination under § 1491(a).15

In sum, SMSI’s Amended Complaint does not contain facts amounting to an

action pursuant to 28 U.S.C. § 1491(b) and does not contain any request for relief

pursuant to that statutory subsection. SMSI’s reply brief does not — and, indeed,

cannot — cure that omission.

IV. CONCLUSION

The law is clear that SMSI’s Amended Complaint contains only a CDA claim

pursuant to 28 U.S.C. § 1491(a), which does not provide this Court with the power to

grant SMSI’s motion for preliminary equitable relief. None of SMSI’s arguments

persuade the Court otherwise. Accordingly, the Court DENIES Plaintiff’s motion for

reconsideration.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

15SMSI cites (1) CCL, Inc. v. United States, 39 Fed. Cl. 780 (1997); (2) OTI Am., Inc. v. United States,

68 Fed. Cl. 108 (2005); (3) K-Lak Corp. v. United States, 93 Fed. Cl. 749 (2010); and (4) Tolliver Grp.

Inc. v. United States, 151 Fed. Cl. 70 (2020). Pl. Mem. at 10–11. The CCL plaintiff “contend[ed]

that the [agency] violated [the Competition in Contracting Act] by expanding [a] contract

beyond its scope without opening up that additional work to competition.” 39 Fed. Cl. at 788.

In OTI America, “[t]he question presented” was “whether the third, concluding prong of

Paragraph (1) of Subsection 1491(b) embraces . . . a . . . situation . . . where the agency has

entered into identical multi-award contracts that essentially involve a competition in stages to

develop a new product, and ultimately to procure that product, and the protest concerns

objections to the agency’s actions in eliminating one of the competitors at an intermediate

stage.” 68 Fed. Cl. at 114. The court held that “there seems to be no doubt that the competition

between and among contractors for an ultimate award occurs ‘in connection with a

procurement or a proposed procurement.’” Id. (quoting 28 U.S.C. § 1491(b)). In K-Lak Corp., the

plaintiff alleged in its complaint violations of statutes related to an agency’s procurement that

followed the expiration of the plaintiff’s contract. 93 Fed. Cl. at 751–52 (noting, amongst other

alleged violations of law in connection with a procurement, allegations of an illegal sole-source

award). The Tolliver plaintiffs “claim[ed] that the agency’s decision to cancel

two . . . solicitations fails the Administrative Procedure Act [] standard of review applicable in

actions brought pursuant to § 1491(b)(1)” and “assert[ed] that the agency’s decision and

supporting rationale — namely, to move the solicitations at issue to a recently awarded

[multiple award IDIQ contract] — violate[d] FAR 19.502-2(b)[.]” 151 Fed. Cl. at 80. Unlike all

the plaintiffs in the foregoing cases, SMSI alleges no facts supporting an action challenging, or

that is otherwise in connection with, a procurement or proposed procurement, and thus fails to

state a claim within this Court’s § 1491(b) jurisdiction.

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