FMS INVESTMENT CORP. v. USA
ORDER DISMISSING CASES: granting 189 Motion to Dismiss - Rule 12(b)(1); denying 214 , 215 , 221 , 223 , 226 , 227 , 228 , 230 , 233 , 235 , 236 , 246 , Motions to Supplement Pleadings - Rule 15(d); finding as moot 140 Motion to Dismiss - Rule 12(b)(6) and LIFTING 106 , Preliminary Injunction. The Clerk is directed to enter judgment. Signed by Judge Thomas C. Wheeler. (mg) Service on parties made. Modified on 5/25/2018 to add additional text (ar).
In the United States Court of Federal Claims
Nos. 18-204C, 18-206C, 18-207C, 18-208C, 18-211C, 18-214C, 18-216C, 18-220C,
18-229C, 18-238C, 18-239C, 18-245C, 18-246C, 18-248C, 18-251C, 18-252C, 18-261C,
18-275C, 18-328C, 18-498C
(Filed: May 25, 2018)
FMS INVESTMENT CORP., et al.,
THE UNITED STATES,
PERFORMANT RECOVERY, INC., et al.,
ORDER DISMISSING CASES
On May 7, 2018, the Government filed a motion to dismiss the above-captioned
consolidated bid protest and to lift the February 26, 2018 Preliminary Injunction (“PI”)
issued in this case, Dkt. No. 106, arguing that the Department of Education’s (“ED”)
decision to cancel the solicitation at issue in this case rendered Plaintiffs’ claims moot.
Dkt. No. 189, at 1. Shortly thereafter, the following twelve Plaintiffs moved for leave to
file supplemental pleadings to add claims that ED’s decision to cancel the solicitation was
arbitrary, capricious, and contrary to law: FMS Investment Corp. (Dkt. No. 214); Account
Control Technology, Inc. (Dkt. No. 215); Texas Guaranteed Student Loan Corp. (Dkt. No.
221); Transworld Systems, Inc. (Dkt. No. 223); Gatestone and Co. International, Inc. (Dkt.
No. 226);1 GC Services Limited Partnership (Dkt. No. 227); Continental Service Group,
Inc. (Dkt. No. 228); Williams and Fudge, Inc. (Dkt. No. 230); CBE Group, Inc. (Dkt. No.
233); Delta Management Associates, Inc. (Dkt. No. 235); Progressive Financial Services,
Inc. (Dkt. No. 236); and Central Credit Services, LLC (Dkt. No. 246) (collectively,
“Moving Plaintiffs”). In their motions, the Moving Plaintiffs assert that their claims are
not moot because the Court has bid protest jurisdiction over their supplemental claims
challenging ED’s decision to cancel the solicitation.
On May 18, 2018, 17 parties, including defendant-intervenors Performant
Recovery, Inc. (“Performant”) and Windham Professionals, Inc. filed formal responses to
the Government’s motion to dismiss.2 Of the 17, 14 opposed the motion, two did not
oppose, and one—Automated Collection Services, Inc.—filed a Notice with the Court
indicating that it did not oppose the Government’s motion and would be filing a new bid
protest complaint in the Court challenging ED’s cancellation of the solicitation. Dkt. No.
216. The Government filed its reply on May 23, 2018, and the Court has deemed oral
Additionally, on March 15, 2018, Performant filed a motion for partial dismissal of
all counts in Plaintiffs’ complaints that allege ED extended preferential treatment to
Performant during the evaluation process because of Education Secretary Betsy DeVos’
former financial ties to Performant. Dkt. No. 140. The parties concluded briefing
Performant’s motion on April 26, 2018, and the Court likewise deems oral argument
For reasons to be explained in a more substantive Opinion in the coming days, the
Court GRANTS the Government’s motion to dismiss, LIFTS the February 26, 2018 PI,
DENIES Plaintiffs’ motions for leave to file supplemental pleadings, and DENIES
Performant’s motion for partial dismissal as MOOT. The Clerk is directed to dismiss
Plaintiffs’ complaints without prejudice. No Costs. For the sake of judicial continuity and
efficiency, any new protests that may be filed challenging ED’s decision to cancel the
solicitation should indicate that they are related to the FMS Investment Corp. line of cases.
IT IS SO ORDERED.
The Court notes that Gatestone did not file a formal motion for leave to file supplemental pleadings; rather,
it requested leave in its response to the Government’s motion to dismiss. See Dkt. No. 226.
The following Plaintiffs did not file a formal response to the Government’s motion: Delta Management
Associates, Inc.; Coast Professional, Inc.; Collecto, Inc. d/b/a EOS CCA; Immediate Credit Recovery, Inc.;
and Allied Interstate LLC. The Court notes that Coast Professional, Inc., Collecto, Inc. d/b/a EOS CCA,
Immediate Credit Recovery, Inc., and Allied Interstate LLC indicated to the Court on May 11, 2018 that
they did not intend to oppose the Government’s motion. See Dkt. Nos. 204, 207, 211, and 212.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
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