Science Systems and Applications Inc. v. United States of America et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 7/22/2014. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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SCIENCE SYSTEMS AND
APPLICATIONS, INC.,
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Plaintiff,
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v.
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UNITED STATES OF AMERICA, et al.
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Defendants.
Case No.: PWG-14-2212
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MEMORANDUM OPINION
Plaintiff, a government contractor, has brought this action alleging that certain
confidential information provided to the United States as part of the bidding process was
improperly published to Plaintiff’s competitors.
To remedy the breach, Plaintiff seeks a
temporary restraining order requiring the United States to take down the confidential information
and also preventing the mobilization and demobilization of contracts in which Plaintiff was
involved. Because Plaintiff has not attempted to provide notice to Defendants or shown why
notice should not be required in accordance with Fed. R. Civ. P. 65(b)(1)(B), I must deny the
TRO. In addition, because this Court lacks jurisdiction over certain of Plaintiff’s claims, I find
that I cannot issue an injunction with respect to the mobilization or demobilization of contracts in
any event, and dismiss certain of Plaintiff’s claims for lack of subject matter jurisdiction.
I.
BACKGROUND
Plaintiff Science Systems and Applications, Inc. (“SSAI”), describes itself as “a leading
provider of scientific, engineering, and IT support for customers who seek new frontiers in
science and technology,” Sci. Sys. and Applications, Inc. (SSAI), https://www.ssaihq.com/ (last
visited July 21, 2014), and is incorporated and headquartered in Maryland, Am. Compl. ¶ 7, ECF
No. 15.1 SSAI is the prime contractor on the Environmental Satellite Processing Division
Support contract (the “ESPDS Contract”) issued by Defendant National Oceanic and
Atmospheric Administration’s (“NOAA”) National Environmental Satellite, Data and
Information Service, Order no. GST0110BK0017, Contract no. CM130105CT0047, Duffy Aff. ¶
4, Am. Compl. Ex. A, ECF No. 15-3, which will be completed on August 15, 2014, Id. ¶ 24.
In response to NOAA solicitations for bids on Option Year Two of the ESPDS Contract,
SSAI submitted “highly sensitive proprietary business information,” including trade secrets and
“Source Selection Information” as defined in the Federal Acquisition Regulations (“FAR”), 48
C.F.R. § 2.101. Am. Compl. ¶ 12; see also Duffy Aff. ¶ 6. These documents were marked as
confidential and restricted, and were password-protected when submitted. Duffy Aff. ¶ 7.
At an unspecified later time, NOAA also issued a new solicitation for a Satellite Mission
Operations and Maintenance Support Contract (the “SMOMS Contract”), Solicitation no. ST133E-13-RP-0196, which “entails a continuation of the service SSAI has provided under the
ESPDS contract.” Am Compl. ¶ 14; Duffy Aff. ¶ 8. Lacking the wherewithal to bid as a prime
contractor for the SMOMS contract, SSAI joined the bid of Systems Integrated Development,
Inc. (“SID”) as a subcontractor to its bid, and submitted material that included “highly sensitive
business proprietary information, trade secrets, and “Source Selection Information,” Am. Compl.
¶ 15; Duffy Aff. ¶ 10, contained in locked, password-protected files, Am. Compl. ¶ 16; Duffy
1
It does not appear from the filings that Defendant United States of America has been served in
this action or given notice of it, and SSAI seeks to proceed ex parte. Accordingly, the facts used
herein are taken solely from SSAI’s filings, and though I will rely on those facts for the purpose
of considering and resolving the pending motion, nothing herein is intended to indicate the
adoption of any facts before the Government has had the opportunity to contest it.
2
Aff ¶ 11. The SMOMS contract was not awarded to SID, and instead was awarded to Defendant
2020 Company, LLC. Am. Compl. ¶ 20; Duffy Aff. ¶ 12. “The loss of the SMOMS contract
alone causes Plaintiff lost profits damages in the amount of $1,800,000.00 – $2,000,00.00.”2
Am. Compl. ¶ 29.
On May 7, 2014, Keith Duffy, an SSAI Program Manager sought to access documents
related to the ESPDS contract in a shared hard drive managed by United States personnel (the
“Drive”), Duffy Aff. ¶ 13, and saw that the Drive appeared to contain confidential files related to
the SMOMS solicitation, id. ¶ 15. Upon recognizing certain of the files as belonging to SSAI,
the Program Manager opened them and found that they contained confidential, highly sensitive
information and no longer were password protected, so that they could be viewed by others,
including SSAI’s competitors. Id. ¶¶ 16–20.
In a letter dated May 16, 2014, SSAI provided notice to “Mr. Mitchell Ross, Director of
NOAA’s Acquisition and Grants Office,” advising him that confidential information was
disclosed improperly by NOAA; the letter was copied to “Mr. Anthony Pellegrino, Contracting
Officer of General Services Administration, and to the United States Department of Commerce
Office of Inspector General.”
Am. Compl. ¶ 31.
Although SSAI was advised that an
investigation by the Department of Commerce Office of the Inspector General (the “OIG
Investigation”) was underway, “SSAI has seen no government action addressing its concerns,”
id. ¶ 32, which I take to mean that SSAI’s confidential data remains unprotected.
After failing to win the SMOMS Contract, SID “filed a post-award bid protest with the
Government Accountability Office (GAO) on May 22, 2014, in part on the basis that source
2
Although it appears that SSAI meant to allege damages up to two million dollars and simply
omitted a zero, I will not correct the error here because the amount of damages sought has legal
significance.
3
selection information of its proposed subcontractor SSAI was wrongfully disclosed and
unprotected, . . . and the award was thereby tainted.” Id. ¶ 33. The protest “was dismissed due
to a technical filing error,” and it is not clear from the present record whether SID intends to
pursue further action in the Court of Federal Claims. Id. ¶ 34.
On July 9, 2014, SSAI filed a Complaint and Motion for Emergency Injunctive Relief
(“Compl.”), ECF No. 1, in this Court against Defendants United States of America, NOAA, and
2020 Company, LLC, alleging violations of the Procurement Integrity Act (“PIA”), 41 U.S.C.
§ 2102, and the Federal Information Security Management Act (“FISMA”), 44 U.S.C. § 3541,
and alleging a claim for publication of trade secrets under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346. Plaintiff also sought immediate injunctive relief suspending the
demobilization of the ESPDS contract and the mobilization of the SMOMS contract pending
completion of the OIG Investigation. Id. 12. The next day, SSAI also filed a one-and-a-halfpage, ex parte Motion for a Protective Order, ECF No. 5, seeking an order at the outset of this
case restricting public access to information contained in case filings.3
On July 11, 2014, I denied the Motion for Emergency Injunctive Relief, which I
construed as a motion for a temporary restraining order, in a Letter Order noting serious concerns
as to whether this Court can exercise subject matter jurisdiction over SSAI’s claims. Letter
Order, ECF No. 6. In that Letter Order, I noted that waivers of the sovereign immunity of the
United States must be construed narrowly, and that neither the PIA nor the FISMA appeared to
give rise to a private right of action against the United States. Id. 1–2. Because these laws did
not allow for a private suit against the Government, I also noted serious doubts that the FTCA
could be a valid basis for relief for the same harm. Id. Accordingly, in addition to denying the
3
The Motion for Protective Order initially was filed as an attachment to the Complaint, but was
rejected by the Clerk as improperly filed and re-filed as a free-standing motion on July 10, 2014.
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motion for a TRO, I ordered SSAI to show cause as to why its Complaint should not be
dismissed for lack of subject matter jurisdiction. That same day, I summarily denied the Motion
for Protective Order, without prejudice, for failure to satisfy the requirements of Doe v. Public
Citizen, 749 F.3d 246 (4th Cir. 2014). Paperless Order, ECF No. 9.
SSAI has filed a Motion to Reconsider Plaintiff’s Protective Order (“Mot. to Reconsider
Prot. Order”), ECF No. 10, and a Motion for Reconsideration of Motion for Temporary
Restraining Order and Preliminary Injunction (“Mot. to Reconsider TRO”), ECF No. 12, and
supporting Memorandum (“TRO Mem.”), ECF No. 12. SSAI also has filed Plaintiff’s Response
to Order to Show Cause (“Pl.’s OSC Resp.”), ECF No. 13, and amended its complaint on July
21, 2014, Am. Compl., ECF No. 15.
In SSAI’s Amended Complaint, it adds a new basis for jurisdiction: the Administrative
Procedure Act (the “APA”), 5 U.S.C. §§ 701–706. Id. For the first time, SSAI also expressly
spells out the claims it seeks to assert against the Government: (I) “Tortious Disclosure of
Proprietary Information, Trade Secrets, and Source Selection Data,” arising under the FTCA and
the APA, id. at 9; (II) “Violation of Plaintiff’s Procedural Due Process Rights Under the APA
and the U.S. Constitution,” id. at 10; (III) and “Equitable Estoppel,” id. at 11. And in addition to
seeking an injunction preventing the demobilization of the ESPDS contract and the mobilization
of the SMOMS contract, SSAI now seeks to enjoin the United States “from continuing to make
its proprietary information available to unauthorized persons,” and seeks money damages in the
amount of “$1,800,000.00 – $2,000,00.00.” Id. at 13.
It does not appear from the record before me that any Defendant has been served yet, and
SSAI’s attorney has failed to make the certification required by Fed. R. Civ. P. 65(b)(1)(B) when
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a party seeks a TRO. Having reviewed the filings, I find a hearing is not required. Loc. R.
105.6.
II.
STANDARD OF REVIEW
The purpose of a preliminary injunction or a temporary restraining order (“TRO”) is to
“protect the status quo and to prevent irreparable harm during the pendency of a lawsuit,
ultimately to preserve the court's ability to render a meaningful judgment on the merits.” In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). A preliminary injunction is
distinguished from a TRO only by the difference in notice to the nonmoving party and by the
duration of the injunction. U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1
(4th Cir. 2006) (comparing Fed. R. Civ. P. 65(a) with Fed. R. Civ. P. 65(b)). Notice is not
required for a TRO, but the moving party’s attorney, or the movant himself, in the case of a pro
se party, must “certif[y] in writing any efforts made to give notice and the reasons why it should
not be required.” Fed. R. Civ. P. 65(b)(1)(B). Moreover, the moving party must “clearly show”
by “specific facts in an affidavit or verified complaint” that “immediate and irreparable injury,
loss or damage will result to the movant before the adverse party can be heard in opposition.”
Fed. R. Civ. P. 65(b)(1)(A). The substantive standards for a TRO and a preliminary injunction
are identical; therefore a district court can consider a motion for a TRO as a request for a
preliminary injunction, so long as the opposing party was given notice sufficient to allow for a
fair opportunity to oppose it. Id. at 283 (citing Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th
Cir. 2000)).
To obtain a preliminary injunction or a TRO, the plaintiff must “establish that [1] he is
likely to succeed on the merits, [2] he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the
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public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst
v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). As a preliminary injunction is “an
extraordinary remedy . . . [it] may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter, 555 U.S. at 22.
Prior to 2009, the Fourth Circuit followed a “balance of hardship” approach to
preliminary injunctions considering all four Winter factors, but “allow[ing] each requirement to
be conditionally redefined” in a “flexible interplay” depending on how the other requirements
were met. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir.
2009) (citing Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d
189, 196 (4th Cir. 1977)), vacated on other grounds, 559 U.S. 1089 (2010), reissued in part, 607
F.3d 355 (4th Cir. 2010). However, Real Truth invalidated this approach, and it “may no longer
be applied” in the Fourth Circuit. Id.4 As a result, the Plaintiff must satisfy each requirement as
articulated. Id.
III.
DISCUSSION
A. Requirements of Fed. R. Civ. P. 65
Fed. R. Civ. P. 65(b) provides:
(1) Issuing Without Notice. The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
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Insofar as SSAI relies on the TRO standard as articulated in twenty-year-old case law, see TRO
Mem. 3 n.1 (citing Direx Isr., Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.
1991)), it is not clear that SSAI is arguing the proper legal standard in its motion.
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Neither the original nor the amended complaint is verified, Compl.; Am. Compl., and
SSAI has not included an affidavit setting forth the relevant facts with its original TRO motion
incorporated in its Complaint, nor with its Motion to Reconsider TRO. However, as an exhibit
to its Amended Complaint, SSAI has attached an Affidavit of Keith Duffy, Am. Compl. Ex. A,
ECF No. 15-3, which appears to contain relevant factual allegations. Although it is not clear that
the Duffy Affidavit contains the full universe of facts on which SSAI wishes to rest its Motion to
Reconsider TRO, it at least satisfies the requirement that facts be set forth in an affidavit under
Fed. R. Civ. P. 65(b)(1)(A).
On the other hand, SSAI’s counsel has not certified that any efforts were made to provide
notice to Defendants, nor has he set forth reasons why such notice should not be given as Fed. R.
Civ. P. 65(b)(1)(B) requires. This is no mere formal requirement, particularly in a case such as
this where, for reasons discussed infra, it appears that SSAI’s briefing is imprecise and
incomplete, notice to an adversary provides the opportunity for the Court to be accurately
informed of all of the facts and law relevant to a request for preliminary relief. If, as alleged, the
United States has been improperly publishing SSAI’s confidential information, it is difficult to
understand why SSAI would not have provided notice to the Government, giving it the
opportunity to remedy the situation without the need for a TRO or injunction. Accordingly,
SSAI has failed to meet the requirements of Rule 65, and the Motion to Reconsider TRO must be
DENIED without prejudice.
Having failed to give reasons why notice of the TRO motion should not be given to the
government, I am ordering SSAI to give notice if it still wishes to seek a preliminary relief,
within ten days of this Memorandum Opinion.
Though the notice requirement does not
necessitate formal service of process, as part of the notice it provides, SSAI will furnish to
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Defendants copies of all its filings to date as well as orders (including this Memorandum
Opinion) entered by the Court to date.
With regard to the merits of SSAI’s motion, several aspects of its claims may be resolved
without further briefing. Accordingly, to reduce the burden on the parties and the Court, I will
resolve those issues here. Inasmuch as this Memorandum Opinion and the accompanying Order
address, in a fashion adverse to SSAI, the “immediate and irreparable injury” that appears to
undergird SSAI’s bid for a TRO as opposed to a preliminary injunction, it is questionable
whether any basis now exists for further ex parte TRO proceedings, rather than proceeding to
consider the appropriateness of a preliminary injunction, which may proceed at a more
deliberative pace and allow for all parties to be heard. See Fed. R. Civ. P. 65(b).
B. Subject Matter Jurisdiction
In my Letter Order of July 11, 2014, I expressed doubt that this Court had subject matter
jurisdiction over Plaintiff’s claims arising under the PIA, FISMA, and FTCA, and I ordered
SSAI to show cause why those claims should not be dismissed. Plaintiff has responded to that
Order, Pl.’s OSC Response, and also has added new bases for seeking relief: the APA and the
Fifth Amendment’s Due Process Clause,5 see Am. Compl.
In its OSC Response, SSAI has not argued that this Court can entertain a private action
brought under the PIA or FISMA, see Pl.’s OSC Resp. Accordingly, Plaintiff has conceded that
subject matter jurisdiction does not lie under those statutes, see Burns & Russel Co. of Balt. v.
Oldcastle, Inc., 166 F. Supp. 2d 432, 440 (D. Md. 2001), and to the extent that SSAI has sought
to assert claims arising under those statutes, such claims must be DISMISSED.
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SSAI purports to bring its claim under both the Fifth and Fourteenth Amendments. Am.
Compl. ¶ 52. However, because the Fourteenth Amendment applies only to action by states, it
readily is apparent that SSAI only can assert a Due Process claim against the Federal government
under the Fifth Amendment’s Due Process Clause.
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Rather, SSAI has sought to show that it may bring a claim for money damages for
breaches of Maryland law respecting the treatment of trade secrets, id. at 3–5, and now has
marshalled case law to support its position, see id. (citing Jerome Stevens Pharma, Inc. v. FDA,
402 F.3d 1294, 1256 (D.C. Cir. 2005); Kramer v. U.S. Dep’t of the Army, 653 F.2d 726 (2d Cir.
1980)). These cases suggest (though I do not here hold) that SSAI’s claims may be cognizable
under the FTCA.
But SSAI has missed a crucial analytical step that is fatal to its FTCA claims: the
requirement that a tort claim be presented to the relevant agency and denied before a civil action
may be commenced under the FTCA. See Henderson v. United States, 785 F.2d 121, 123 (4th
Cir. 1986). The FTCA clearly provides that “[a] tort claim against the United States shall be
forever barred unless it is presented in writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six months after the a date of
mailing . . . of notice of final denial of the claim.” 28 U.S.C. § 2401(b). These requirements are
“jurisdictional and nonwaivable.” See Gould v. U.S. Dep’t of Health and Human Servs., 905
F.2d 738, 741 (4th Cir. 1990). SSAI provided notice to the United States on May 16, 2014, Am.
Compl. ¶ 31, but filed its original Complaint less than two months after giving notice, and before
it has received a response, Am. Compl. ¶ 32. This is insufficient to deem the lack of a response
to be a denial. See 28 U.S.C. § 2675(a) (“The failure of an agency to make final disposition of a
claim within six months after it is filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for the purposes of this section.”). Even in the cases cited by
SSAI, plaintiffs were required to comply with the requirements of the FTCA. See, e.g., Jerome
Stevens Pharma., Inc. v. Food and Drug Admin., 319 F. Supp. 2d 45, 48 n.5 (D.D.C. 2004),
rev’d, 402 F.3d 1294 (“Prior to filing suit, Jerome exhausted its FTCA claims by presenting its
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claims to FDA and failing to receive a final agency disposition within six months.”).
Accordingly, SSAI’s FTCA claim must be DISMISSED for lack of subject matter jurisdiction,
along with SSAI’s claim for monetary relief, since the APA does not authorize an award of
money damages. See 5 U.S.C. § 702 (authorizing “relief other than money damages”).6
C. Availability of Injunctive Relief
With respect to its remaining APA claim, SSAI seeks a preliminary injunction that will
(1) require the government to stop publishing SSAI’s confidential information; (2) bar the United
States and NOAA from demobilizing SSAI’s existing, ESPDS Contract; and (3) bar the United
States and NOAA from moving forward with the SMOMS Contract that was awarded to 2020
Company, LLC. Pl.’s Mot. to Reconsider TRO 1–2. In essence, this boils down to two forms of
relief: (i) an injunction requiring the United States to cease publication of information that, as
alleged by Plaintiff, it cannot legally publish; and (ii) an injunction halting NOAA’s procurement
process on the contracts involving SSAI and, in essence, holding those contracts in limbo until
the OIG Investigation sought by SSAI is concluded. SSAI has raised at least the possibility that
it may be entitled to the first of these injunctions, granting relief with respect to the release of its
confidential information under the APA. See Megapulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C.
Cir. 1982) (finding plaintiff entitled to preliminary injunction for publication of trade secrets
6
I will not address SSAI’s Due Process claim here except to notice that it is extremely difficult
to discern the nature of the claim that SSAI seeks to bring under the Due Process Clause.
Paragraph 50 of its Amended Complaint actually seems to sound in a Takings Clause claim for
just compensation for the taking of its confidential information, Paragraph 51 appears to argue
that the standing requirements and narrow waiver of sovereign immunity contained in the Tucker
Act violate Due Process, and Paragraph 52 raises an unparticularized argument that the
Government, presumably either by publishing confidential information or by refusing to award
the SMOMS Contract to SID, has “violated Plaintiff’s procedural and substantive due process
rights.” Though the validity of all of these claims is questionable, none seems to allege grounds
for injunctive relief. Accordingly, I need not address them to resolve the instant motion
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under APA as agency action contrary to law). But because SSAI has not complied with Rule 65,
I need not resolve that issue conclusively here.
On the other hand, it is apparent that SSAI cannot be entitled to an injunction preventing
demobilization of the ESPDS Contract or mobilization of the SMOMS Contract. To prevail on a
preliminary injunction, SSAI must “make a clear showing that it will likely succeed on the merits
at trial.” Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir.
2009) (citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 19 (2008). SSAI cannot even
show that it may bring claims related to the award of a contract in this Court, much less prevail
on them.
Although SSAI seeks to characterize its claim in a variety of imaginative ways, it
essentially is seeking review of a contract award under the Tucker Act, 28 U.S.C. § 1491(b)(1).
Though once the district courts were permitted to entertain such an action, the provision granting
jurisdiction expired on January 1, 2001. See Sealift, Inc. v. Reilly, 496 F. Supp. 2d 52, 52
(D.D.C. 2007) (citing Pub. L. No. 104-320, § 12(d)). Accordingly, this Court no longer can
entertain such a claim, much less enter an injunction with respect to a bid protest.
Moreover, even in the absence of § 1491’s sunset provision, such an action only may be
brought “by an interested party.” 28 U.S.C. § 1491(b). An interested party must be “an actual or
prospective bidder,” 4 C.F.R. § 21.0, and it long has been the case that a subcontractor to
another’s bid—even a major subcontractor—simply does not meet this definition.
MCI
Telecomm. Corp. v. United States, 878 F.2d 362, 364 (Fed. Cir. 1989). Accordingly, even if an
action to prevent the demobilization of the ESPDS contract and the mobilization of the SMOMS
contract could be brought in a district court, SSAI would lack standing to bring it.
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Finally, even if I could entertain such a suit, it is doubtful that an injunction delaying any
action on two government contracts would serve the public interest. See Weinberger v. RomeroBarcelo, 456 U.S. 305, 312–13 (1982) (“courts . . . should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction”).
When a TRO or
preliminary injunction will affect the ability of an agency to perform its public duties, the
potential harm to this public interest “must be considered, though it may not be determinative.”
Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3rd Cir. 1980). Were I to grant the relief
that SSAI requests, it would create considerable disarray in the ESPDS Contract and the
SMOMS Contract. It is hard to discern how this is in the public interest, even if SSAI is correct
that certain of its confidential commercial information improperly was published. And, even if
the public interest may be furthered in general by protecting confidential business information,
that interest does not override the public interest in the effective management of government
contracts.
Simply put, SSAI has failed to articulate a sufficient basis for enjoining the
demobilization of the ESPDS Contract or the mobilization of the SMOMS Contract, and to the
extent that it seeks an injunction that does so, its motion must be DENIED, and any claims
seeking to challenge the award of a contract must be DISMISSED for lack of subject matter
jurisdiction.
D. Motion for Protective Order
SSAI also has filed a Motion to Reconsider Protective Order, asking me to reconsider my
denial of its original protective order motion because SSAI failed to comply with the
requirements of Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014). Simply put, for the reasons
stated in Doe, filings in federal courts are public matters, and a court may not seal entire
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proceedings or parts thereof without specific factual findings that support the legal principles in
Doe. See id. at 266 (“When presented with a sealing request, our right-of-access jurisprudence
requires that a district court first ‘determine the source of the right of access with respect to each
document, because only then can it accurately weigh the competing interests at stake.’”). SSAI’s
failure to comply with Doe in seeking the presumptive sealing of documents not yet filed,
precludes the order that it seeks. And in any event, SSAI also has failed to comply with Fed. R.
Civ. P. 5.2 or Loc. R. 105.11 governing when and how documents may be sealed. Accordingly,
the motion for a protective order is DENIED, without prejudice to SSAI seeking to protect
confidential information contained in specific filings as appropriate.
IV.
CONCLUSION
For the stated reasons, Plaintiff SSAI’s Motion for Reconsideration of Motion for
Temporary Restraining Order and Preliminary Injunction shall be DENIED and SSAI’s Motion
to Reconsider Protective Order also shall be DENIED. Further, SSAI’s claims arising under the
Procurement Integrity Act, the Federal Information Security Management Act, the Federal Tort
Claims Act, and the Tucker Act will be DISMISSED for lack of subject matter jurisdiction.
A separate order shall issue.
Dated: July 22, 2014
_______/S/________
Paul W. Grimm
United States District Judge
dsy
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