Just a quick in-sourcing update for today. On March 19, 2011, in Fisher-Cal Industries, Inc. v. United States, et. al, the United States District Court for the District of Columbia issued an opinion dismissing plaintiff’s in-sourcing claim. No 11-791 (D.D.C. Mar. 19, 2012). As I discussed in my blog post about the Fifth Circuit’s decision in Rothe Development, Inc., various courts have been attempting to interpret the Tucker Act to determine whether that Act provides standing for contractors to pursue in-sourcing claims and which court would have jurisdiction. Consistent with the Fifth and Eleventh Circuits, the D.C. District Court held that district courts lack subject-matter jurisdiction over in-sourcing claims. See Rothe Development, Inc. v. United States Department of Defense, 666 F.3d 336 (5th Cir. 2011); Vero Technical Support v. U.S. Dep’t of Def., 437 F. App’x 766, 770 (11th Cir. 2011) (unpublished decision). Although plaintiff argued that its claim solely challenged the government’s compliance with its own guidelines and procedures and therefore fell under the Administrative Procedure Act (“APA”), the court held that a decision to in-source is a decision in connection with a procurement under the Tucker Act and therefore the court was without jurisdiction. The court noted that although “the APA waives sovereign immunity, it does so only to the extent that no other statute ‘expressly or impliedly forbids the relief which is sought.’” Because the Tucker Act allows plaintiffs to challenge in-sourcing decisions at the Court of Federal Claims, the APA can not provide concurrent jurisdiction in the district courts. Finally, and most interestingly, the Court addressed plaintiff’s argument that it was not an interested party as required by the Tucker Act, and held that it need not resolve that issue because it is the Court of Federal Claims that must address the merits of plaintiff’s claims and whether plaintiff has the ability to pursue them at all.
Stay tuned though, as it looks like there have been exciting developments on the issue at the Court of Federal Claims and the decision on another in-sourcing case should be unsealed very soon.