Tomscha et al v. The General Services Administration et al

Filing 19

ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction: For the foregoing reasons, Defendant's motion to dismiss is granted. The Clerk of Court is directed to close the case. This resolves Dkt. No. 9. (Signed by Judge Alison J. Nathan on 6/21/2016) (tn)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
·
DATE FILED:JUN 2 1 2016

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Lawrence Tomscha et al.,
Plaintiffs,

15-CV-7326 (AJN)

-vMEMORANDUM AND
ORDER

General Services Administration,
Defendant.

ALISON J. NATHAN, District Judge:
Plaintiffs Lawrence Tomscha, Latanya Harrison, Peter Davis, Jonathan Phillips, Crystal
Cuffee, and Priscilla Rosario initiated this action on September 16, 2015. Dkt. No. 1. Defendant
General Services Administration filed its motion to dismiss on December 7, 2015. Dkt. No. 9.
For the reasons articulated below, that motion is granted.

I.

BACKGROUND
The General Services Administration ("GSA") currently occupies several floors of office

space at 26 Federal Plaza in Manhattan. Comp. i! 66. In July 2012, the GSA entered into an
agreement to lease six levels of One World Trade Center, constructed near the former location of
the World Trade Center Towers destroyed on September 11, 2011. Id.
are employees of the GSA, id.

i! 69, 71.

Plaintiffs, who

i! 65, have been informed that they will move from 26 Federal

Plaza to One World Trade Center in the near future. Id.

i!i! 24, 36, 46, 55.

This suit is brought under the Administrative Procedure Act, 5 U.S.C. § 501 et seq.
("APA") and challenges the GSA's lease of space at One World Trade Center. Comp. i!i! 105108. First, Plaintiffs argue that the GSA failed to comply with 41 U.S.C. § 3301 (formerly 41
U.S.C. § 253(a)), which requires the federal government to use competitive bidding procedures
1

before entering into a lease. Comp. iii! 89-94. Next, Plaintiffs argue that the GSA failed to
comply with 40 U.S.C. § 585(a)(2), which requires that the terms of any lease entered into by the
GSA be "in the interest of the Federal Government and necessary for the accommodation of the
federal agency. Comp. ifil 99-102. As a result of these alleged statutory violations, Plaintiffs seek
declaratory relief and an injunction prohibiting the GSA from entering into the One World Trade
Center lease. Comp. at 14.
Based on these allegations, the GSA has moved to dismiss Plaintiffs lawsuit for lack of
constitutional standing, prudential standing, and subject-matter jurisdiction. Dkt. No. 9. The
Court will first address constitutional standing, then subject-matter jurisdiction, and then the
"zone of interests" analysis previously called prudential standing.

II.

CONSTITUTIONAL STANDING
"[T]he irreducible constitutional minimum of standing" consists of three elements:
First, the plaintiff must have suffered an injury in fact-an invasion
of a legally protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury and the conduct
complained of-the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action
of some third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks, citations, alterations,
and footnotes omitted).
In support of their lawsuit, Plaintiffs allege three categories of injury to establish
constitutional standing. First, Plaintiffs cite their fears that One World Trade Center will be the
target of future terrorist attacks. Comp. ifil 12, 27, 49, 70. At least some Plaintiffs were present
in downtown Manhattan on September 11, 2001, a factor that they cite as exacerbating this fear.

2

Id. iii! 9, 11, 54, 56-58. Second, Plaintiffs argue that the lease, which is alleged to cost $351
million, is unnecessarily expensive and constitutes a waste of taxpayer funds. Id. iii! 75, 78, 86.
Finally, Plaintiffs argue that the new facilities at One World Trade Center lack private
workspaces, offer fewer amenities for employees than 26 Federal Plaza, and would exacerbate
the vertigo and fear of heights of one plaintiff. Id. iii! 18, 26, 29, 4 7-48, 61. The Court will
consider each alleged basis for standing in turn.

A. Plaintiffs' Fear of Future Terrorist Attacks Is Insufficient to Establish Standing
Plaintiffs first argue that they have an injury sufficient to establish constitutional standing
based on their fears that their new workplace, One World Trade Center, will be the target of
future terrorist attacks. Comp. iii! 12, 27, 49, 70. The GSA argues that such fears are
"conjectural and do not present the real and immediate threat of future injury necessary to
establish Article III standing." Dkt. No. 10 ("Br.") at 9. Plaintiffs respond that any move to One
World Trade Center would "force[ them] to spend significant portions of their waking hours in a
place which instills significant fear due to the potential for terrorist attack." Dkt. No. 16 ("Opp.
Br.") at 7. In essence, Plaintiffs argue that while an actual terrorist attack may not be imminent,
their fears and anxiety about that possibility are sufficiently "concrete and particularized" and
"actual or imminent" to establish constitutional standing. Lujan, 504 U.S. at 560.
The Supreme Court has addressed this concept of "fear-based standing," Hedges v.
Obama, 724 F.3d 170, 195 (2d Cir. 2013), numerous times. The concept had its origin in City of
Los Angeles v. Lyons, 461 U.S. 95 (1983), where the Court observed that "[t]he reasonableness
of [a] fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It
is the reality of the threat ... that is relevant to the standing inquiry, not the plaintiff's subjective
apprehensions." Id. at 107 n.8. More recently, in Clapper v. Amnesty Int'l USA, 133 S. Ct.

3

1138, 1150-51 (2013), the Supreme Court explained that plaintiffs "cannot manufacture standing
merely by inflicting harm on themselves based on their fears of hypothetical future hann that is
not certainly impending." Id. at 1151. The reason for this, the Court explained, was to prevent
"an enterprising plaintiff' from "making an expenditure based on a nonparanoid fear," thereby
"repackage[ing]" an insufficient injury and creating a sufficient injury. Id.
These cases stand for the proposition that a plaintiff may not evade the "actual or
imminent" injury requirement of Article III by citing subjective fears unrelated to the objective
probability of harm. In other words, if the harms suffered are not objectively actual or imminent,
a plaintiff cannot argue that his (disproportionate) subjective assessment of the situation creates
an actual or imminent harm, whether it be in the form of emotional distress or preventive cost.
However, a plaintiff's "fears may support standing when the threat creating the fear is
sufficiently imminent." Hedges, 724 F.3d at 195. Despite this general understanding, the
question remains of precisely "how imminent a threat must be in order to support standing"
under this theory, and as the Second Circuit has noted, "[t]he Supreme Court's jurisprudence" on
this issue "has been less than clear." Id. (emphasis added). For example, in Clapper, the
Supreme Court rejected the idea that the threat of a future harm need only be an "objectively
reasonable likelihood" to establish fear-based standing and instead concluded that such harm
must be "certainly impending." Clapper, 133 S. Ct. at 1143, 1147. However, the Clapper Comi
also recognized that it had previously "found standing based on a 'substantial risk' that the harm
will occur." Id. at 1150 n.5 (emphasis added). Despite some tension, the Court reads this case as
requiring, at a minimum, that a plaintiff's subjective fear be "reasonable[]," Lyons, 461 U.S. at
107 n.8, in relationship to a "substantial" objective risk. Clapper, 133 S. Ct. at 1150 n.5.

4

Measured against this standard, Plaintiffs' genuine fears of a future terrorist attack at One
World Trade Center are insufficient to establish constitutional standing. Because Plaintiffs
"bear[] the burden of establishing standing," Lujan, 504 U.S. at 561, they must "plead[] ...
concrete facts showing ... [a] substantial risk of harm" to justify their fears. Clapper, 133 S.
Ct. at 1150 n.5. Plaintiffs allege "[u]pon information and belief' that "terrorists ... see [One
World Trade Center] as a symbol of the United States [sic] economic interests," Comp. ii 70, and
argue that it is the target of unspecified "threats made by various international terrorist
organizations." Dkt. No. 16 at 6. However, Plaintiffs put forth only one "concrete fact[],"

Clapper, 133 S. Ct. at 1150 n.5, in their opposition brief support of the notion that One World
Trade Center will be a target for future terrorist attacks: That One World Trade Center "replaced
what was a target for terrorists on two separate occasions" in the past (presumably referring to
the 1993 bombing and the September 11, 2011 attacks). Dkt. No. 16 at 6. "Of course, past
wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury."

O'Shea v. Littleton, 414 U.S. 488, 496 (1974). However, the fact that the World Trade Center
complex was targeted in two very different terrorist attacks over the past twenty-three years,
without more, is insufficient to demonstrate a "real and immediate threat," id., that is "certainly
impending," Clapper, 133 S. Ct. at 1150, or even a "substantial risk," id. at 1150 n.5, that One
World Trade Center specifically will be the target of any future, let alone imminent, terrorist
attack.
The Court does not doubt that Plaintiffs have genuine fears about the possibility that One
World Trade Center could be targeted by a terrorist attack in the future. However, Plaintiffs'
allegations on the likelihood of this threat do not meet their burden of demonstrating that there is
a "substantial risk" of such an attack, or that an attack is "certainly impending." Clapper, 133 S.

5

Ct. at 1150 & n.5. Because "the reality of the threat ... is relevant to the standing inquiry, not
the plaintif:fls'] subjective apprehensions," Lyons, 461 U.S. at 107 n.8, and Plaintiffs have not
alleged that the threat of a future terrorist attack at One World Trade Center is "sufficiently
imminent," Hedges, 724 F.3d at 195, Plaintiffs' subjective fears are not objectively reasonable
and do not establish constitutional standing. Lyons, 461 U.S. at 107 n.8.

B. Plaintiffs' Taxpayer Status Is Insufficient to Establish Standing
Plaintiffs next argue that the GSA' s lease of space at One World Trade Center harms
them as taxpayers because the lease, alleged to cost $351 million, is unnecessarily expensive.
Comp. iii! 75, 78, 86. "As a general matter, the interest of a federal taxpayer in seeing that
Treasury funds are spent in accordance with [federal law] does not give rise to the kind of
redressable 'personal injury' required for Article III standing .... [b]ecause the interests of the
taxpayer are, in essence, the interests of the public at large." Hein v. Freedom From Religion

Found., Inc., 551 U.S. 587, 599-600 (2007). The Supreme Court has, however, recognized one
"narrow exception" for taxpayers who challenge violations of the Establishment Clause. Id. at
593, 602. Plaintiffs recognize that "presently the only exception which permits taxpayer
standing applies to government spending in violation of the Establishment Clause," and do not
argue, nor could they, their its challenge fits these criteria. Opp. Br. at 8. Instead, Plaintiffs
argue that taxpayer standing "should be expanded to provide standing for government employees
who seek to root out government waste." Id. Because Plaintiffs' claim does not fit the "narrow
exception" to the general prohibition of taxpayer standing, Hein, 551 U.S. at 593, 602, and
"[t]his Court does not have the discretion to ignore Supreme Court precedent," In re CBI

Holding Co., 529 F.3d 432, 469 (2d Cir. 2008), Plaintiffs lack constitutional standing to pursue
their claim based on their status as taxpayers.

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C. Plaintiffs' Workplace Injuries Are Sufficient to Establish Standing
Plaintiffs' final standing argument is that they will suffer an imminent "concrete and
particularized" injury once they change offices because the work spaces at One World Trade
Center are inferior to their current workspaces at 26 Federal Plaza. See Comp. iii! 18, 29, 47-48,
61. The GSA argues that such "minimal ... harms ... fail to allege a legally cognizable
interests." Br. at 10.
Although the argument has a strong intuitive appeal, the cases the GSA cites for this
position demonstrate that its argument conflates the standing analysis with failure to state a claim
on the merits. For example, in Diesel v. Town ofLewisboro, 232 F.3d 92 (2d Cir. 2000), the
Second Circuit held that the plaintiff "failed to prove that he suffered a cognizable constitutional
injury" because he had "no constitutional right" under the Equal Protection Clause to the type of
treatment he sought. Id. at 103-04. This case did not involve a standing question; instead, the
Second Circuit found that the plaintiffs Equal Protection claim "fail as a matter of law" on the
merits. Id. at 103; see also id. at 104 ("In short, this equal protection claim alleges no differential
treatment; instead, it alleges that Diesel was deprived of a privileged status to which he had no
constitutional entitlement."). Although, as the GSA notes, the Second Circuit used the term
"constitutional injury" in that case, Dkt. No. 18 ("Rep. Br.") at 5 (citing Diesel, 232 F.3d at 104),
the context makes clear that the Second Circuit was discussing the bounds of cognizable
constitutional claims, not whether the plaintiffs injury was sufficiently "actual or imminent" and
"concrete and particularized" to establish standing. Lujan, 504 U.S. at 560. The same is true of
the other two cases the GSA cites on this point. See Davidson v. Chestnut, 193 F.3d 144, 150
(2d Cir. 1999) (discussing whether the plaintiff had adequately pleaded a First Amendment
retaliation claim based on "the alleged acts ofretaliation"); Leon v. Johnson, 96 F. Supp. 2d 244,

7

247-48 (W.D.N.Y. 2000) (finding that the plaintiff's denial of medication failed to meet the
"deliberate indifference" standard for a § 1983 claim).
The Supreme Court has recognized that "[a]esthetic and environmental well-being, like
economic well-being, are important ingredients of the quality oflife in our society" and that
government action affecting those interests may constitute an injury so long as "the party seeking
review [is] himself among the injured." Sierra Club v. Morton, 405 U.S. 727, 734-35, (1972).
Plaintiffs have been told that they will move from 26 Federal Plaza to One World Trade Center,

see Comp.

iii! 24, 36, 46, 66, and that One World Trade Center, unlike 26 Federal Plaza, will not

have individual work spaces or cubicles for employees, but instead will have a smaller
communal workspace. Id.

iii! 18-19, 28-29, 39-40, 47, 59-61.

They further allege that One

World Trade Center, unlike 26 Federal Plaza, lacks a gym or cafeteria. Id.

iii! 48, 61.

The Court

concludes below that these injuries are not within the "zone of interests" that the statutes invoked
are intended to protect. However, the denial of the enumerated workplace amenities, which
implicate the productivity and comfort of the workplace, is arguably similar to an "[a]esthetic"
injury in some ways, Morton, 405 U.S. at 734, and the Court will therefore presume that it is
sufficiently "concrete and particularized" and "imminent" to establish constitutional standing.

Lujan, 504 U.S. at 560.

III.

SUBJECT MATTER JURISDICTION
Because the Court presumes that the Plaintiffs have constitutional standing, the Court

will consider whether it can exercise subject-matter jurisdiction over Plaintiffs' claims. Plaintiffs
request relief under 28 U.S.C. § 2201, the Declaratory Judgment Act, arguing that Defendant
violated 40 U.S.C. § 585 and 41 U.S.C. § 3301. Comp.

iii! 89-94, 99-104.

The Declaratory

Judgment Act, however, does not provide an independent private right of action. See

8

WorldHomeCenter.com, Inc. v. PLC Lighting, Inc., 851 F. Supp. 2d 494, 503 (S.D.N.Y. 2011);
Zheng v. Reno, 166 F. Supp. 2d 875, 878 (S.D.N.Y. 2001) (citing Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667 (1950)). Instead, the private right of action that Plaintiffs invoke is
the Administrative Procedure Act, 5 U.S.C. § 501 et seq. (APA). Comp.

iii! 105-108.

A. LegalStandard
Under the APA, "[a] person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof." 5 U.S.C. § 702. Judicial review under the APA is not available,
however, if "agency action is committed to agency discretion by law." Id. § 701(a)(2). Section
701 (a)(2) bars judicial review of claims only if "there is no law to apply," Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), overruled on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977), such that there is "no meaningful standard against which to
judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1985). As the
Supreme Court explained, "if no judicially manageable standards are available for judging how
and when an agency should exercise its discretion, then it is impossible to evaluate agency action
for 'abuse of discretion."' Id. To demonstrate that a claim is not barred by§ 701(a)(2), a
plaintiff "must specify some statute or regulation that would limit the [agency's] discretion in
th[ e] matter." Lunney v. United States, 319 F.3d 550, 558 (2d Cir. 2003). This analysis requires
"careful examination of the statute on which the claim of agency illegality is based." Webster v.
Doe, 486 U.S. 592, 600 (1988). Because the AP A "waives the federal government's sovereign
immunity," the Court cannot exercise subject-matter jurisdiction over a claim if"§ 701(a)(2) ...
precludes judicial review of [the relevant] decision under the AP A." Lunney, 319 F.3d at 558;
Webster, 486 U.S. at 601.

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B. Application
The GSA argues that the Court lacks subject matter jurisdiction over Plaintiffs' APA
claim alleging violation of 40 U.S.C. § 585(a)(2). Br. at 16. That statute provides, in pertinent
part, 1 that "[a] lease agreement under this subsection shall be on terms the Administrator
considers to be in the interest of the Federal Government and necessary for the accommodation
of the federal agency." § 585(a)(2). Because the statute gives the GSA Administrator the
authority to determine what is "in the interest of the Federal Government and necessary for the
accommodation of the federal agency,"§ 585(a)(2), the GSA argues that the Administrator's
decision regarding the terms of a lease is "committed to agency discretion by law" and not
reviewable under the AP A. Br. at 16. Countering this argument, Plaintiffs purport to cite a
number of cases "specify[ing] some statute or regulation that would limit the [agency's]
discretion in th[e] matter." Lunney, 319 F.3d at 558. None of the cases Plaintiffs cite, however,
limit the GSA's discretion in a relevant way.
Plaintiffs first cite a number of cases which do not involve§ 585(a)(2), but instead
involve challenges made by losing bidders under a variety of federal procurement statutes and
regulations. Opp. Br. at 12; see also Springfield Parcel C, LLC v. United States, 124 Fed. Cl.
163, 182-83, 185 (2015) (challenging the award of a lease under a variety of federal regulations
and 41 U.S.C. § 3307(a)(2), but not§ 585(a)(2)); Ala. Aircraft Indus., Inc.-Birmingham v. United
States, 586 F.3d 1372, 1373-76 (Fed. Cir. 2009) (challenging the Air Force's award of a contract
for the long-term maintenance of its aircraft under regulations unrelated to§ 585(a)(2)); Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1327, 1329 (Fed. Cir.
2001) (challenging the award of a maintenance contract as violating 48 C.F .R. § 9 .104-1 (d), not

1

Plaintiffs do not allege that the challenged lease violated the 20-year limitation contained in 585(a)(2).

10

§ 585(a)(2)). These distinctions are important because determining whether judicial review is
available under the AP A requires "careful examination of the statute on which the claim of

agency illegality is based." Webster, 486 U.S. at 600 (emphasis added). While the cases
Plaintiffs cite invoke a number of regulations governing various procurement statutes, those
regulations govern who is awarded a lease or contract under the competitive bidding procedures
established in 41 U.S.C. § 3301 et seq. These cases do not cite, and Plaintiffs do not otherwise
identify, any regulations that "limit the [GSA' s] discretion" in determining the terms of a lease
under§ 585(a)(2). Lunney, 319 F.3d at 558.
Next, Plaintiffs cite authority on when an agency's decision can be considered arbitrary
and capricious. Opp. Br. at 12. For example, Plaintiffs rely heavily on the standard articulated
in Motor Vehicle Mfrs. Ass'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).

See Opp. Br. at 12. Importantly, however, this standard was articulated in a case challenging an
agency's failure to satisfy the requirements of§ 553 of the APA. State Farm, 463 U.S. at 41.
That provision, not at issue here, requires an agency to consider "the relevant matter presented"
by "interested persons" and "incorporate in the rules adopted a concise general statement of their
basis and purpose" when it engages in rulemaking. 5 U.S.C. § 553(c). Unlike§ 553, 40 U.S.C.
§ 585(a)(2) and its related regulations do not mandate that the GSA Administrator look to certain
data or follow a certain process in determining the terms of a lease. As a result, the State Farm
standard requiring an agency to look to certain data and explain its decisions it the rulemaking
context is not applicable to judicial review of the GSA's decisions under§ 585(a)(2).
Because none of the statutes, regulations, 2 or cases that Plaintiffs cite provide guidance
on what lease terms the GSA Administrator should "consider to be in the interest of the Federal

2
The Court notes that there are a limited number of regulations on 40 U.S.C. § 585 not cited by Plaintiff.
These regulations do not provide guidance for evaluating whether the "terms [of the lease are] ... in the interest of

11

Government and necessary for the accommodation of the federal agency,'' 40 U.S.C. § 585(a)(2),
Plaintiffs have not discharged their "burden of establishing the 'law to apply"' by "specify[ing]
some statute or regulation that would limit the [GSA's] discretion" in crafting the tenns of a
lease. Lunney, 319 F .3d at 558-59. At least one other court reached the same conclusion. See

Am. Fed'n ofGov't Emps., Local 2764 v. Gen. Servs. Admin., 348 F. Supp. 1200, 1201 (W.D.
Pa. 1972). In fact, Plaintiffs have not identified, and the Court has been unable to locate, any
APA claim based on a violation of 40 U.S.C. § 585. For all these reasons, the Court concludes
there is "no meaningful standard against which to judge the (GSA's] exercise of discretion,''

Heckler, 470 U.S. at 830, in structuring lease "terms the Administrator considers to be in the
interest of the Federal Government and necessary for the accommodation of the federal agency."
§ 585(a)(2).
As a result,"§ 701(a)(2) ... precludes judicial review of [the GSA's] decision(] under
the APA." Webster, 486 U.S. at 601. Because Plaintiffs' § 585(a)(2) allegations are not subject
to judicial review under the APA, they are not justiciable under 28 U.S.C. § 1361, codifying the
common law writ of mandamus. See Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir.
1978) (noting that "matters ... within [an agency's] discretion ... are not reviewable under the
Administrative Procedure Act or 28 U.S.C. § 1361). As a result, all of Plaintiffs' claims based
on the violation of§ 585(a)(2) must be dismissed. However, there are no obstacles to the
Court's exercise of subject-matter jurisdiction over Plaintiffs' 41 U.S.C. § 3301 claim
challenging the GSA's failure to use "competitive procedures" in procuring its lease for One
World Trade Center. Comp. if 94.

the Federal Government and necessary for the accommodation of the federal agency,"§ 585(a)(2), and instead
involve other aspects of the statute. See, e.g., 41C.F.R.§102-73.60; 41C.F.R.§102-73.235; 48 C.F.R. § 570.103.

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IV.

"ZONE OF INTERESTS"
Because Plaintiffs satisfy the standing and subject-matter jurisdiction requirements with

respect to their 41 U.S.C. § 3301 claim, the Court will consider whether Plaintiffs are within the
"zone of interests" protected by this statute. As limited above, Plaintiffs' constitutional standing
is predicated on One World Trade Center being a less desirable workplace for GSA employees.
Defendant argues that these injuries are unrelated to the purpose of 41 U.S.C. § 3301 and are
thus outside of the "zone of interests" protected by the statute. Br. at 11-15.
As recently as 2012, the Supreme Court referred to the "zone of interests" analysis as a
matter of"prudential standing." See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
v. Patcliak, 132 S. Ct. 2199, 2210 (2012). Since then, however, the Supreme Court has clarified
that "[w]hether a plaintiff comes within the zone of interests is an issue that requires (the Court]
to determine, using traditional tools of statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiffs claim." Lexmark Int' l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1387 (2014) (internal quotation marks omitted). Under
Lexmark, then, determining "whether a claim satisfies these requirements goes not to the court's
jurisdiction-that is, 'power'-to adjudicate a case, but instead to whether the plaintiff has
adequately pled a claim." Chabad Lubavitch ofLitchfield Cty., Inc. v. Litchfield Historic Dist.
Comm'n, 768 F.3d 183, 201 (2d Cir. 2014) (quoting Lexmark, 134 S. Ct. at 1387 n.4).
In order to bring suit under the AP A, a plaintiff must allege that his interest is "arguably
within the zone of interests to be protected or regulated by the statute that he says was violated."
Patchak, 132 S. Ct. at 2210 (quoting Ass 'n ofData Processing Serv. Orgs., Inc. v. Camp, 397
U.S. 150, 153 (1970)) (internal quotation marks omitted). This test "is not meant to be especially
demanding" and "forecloses suit only when a plaintiffs interests are so marginally related to or

13

inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that
Congress intended to permit the suit." Id. (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388,
399 (1987)) (internal quotation marks omitted). The GSA argues that any failure to comply with
the competitive bidding requirements of 41 U.S.C. § 3301 has little to do with "Plaintiffs'
workplace-related interests" and thus fails the "zone of interests" test. Br. at 13. In suppo1i of
this argument, the GSA notes that the statute, passed as part of the Deficit Reduction Act of
1984, has the stated goal of "provid[ing] for ... deficit reduction." Id. (quoting Pub. L. No. 98369, 98 Stat. 494). Countering this contention, Plaintiffs point to "Qualification Requirements"
in a related statute which provide for "quality assurance" procedures. Opp. Br. at 9 (quoting 41
U.S.C. § 331 l(a)). Plaintiff argues that "quality assurance" requirements "demonstrate[] a desire
by Congress to ensure that the quality of space procured meets specific standards," including
standards for workplace productivity and aesthetic. Opp. Br. at 9-10.
Plaintiffs' argument seriously misconstrues the "Qualification Requirements" under 41
U.S.C. § 331 l(a). As the regulations explain, "[q]ualification ... is the process by which

products are obtained from manufacturers or distributors [and] examined and tested for
compliance with specification requirements, or manufacturers or potential offerors[] are provided
an opportunity to demonstrate their abilities to meet the standards specified for qualification." 48
C.F .R. § 9 .203(a) (emphasis added). Furthennore, qualifications requirements only apply if an
agency has "establish[ed] a qualification requirement" by"[ s]tating the necessity for establishing
the qualification requirement" and "[ s ]pecifying all requirements that a potential offeror (or its
product) must satisfy in order to become qualified." 48 C.F.R. § 9.202(a)(l)(i), (iii). Because
qualification requirements apply only to products, the statute has no relevance to the lease
agreement here. Even if leases were subject to qualification requirements, there is no indication

14

that the GSA has established any requirement that would be relevant here. As a result, the
"Qualification Requirements" in 41 U.S.C. § 3311 do not establish that Plaintiffs' productivity
and morale interests are within the "zone of interests" of 41 U.S.C. § 3301.
Plaintiffs do not make any other argument that their claims fall within the "zone of
interests" of 41 U.S.C. § 3301. However, the Court notes that while "disappointed bidders" are
within the zone of interests of 41 U.S.C. § 3301 and other federal procurement statutes, see B.K.
Instrument, Inc. v. United States, 715 F.2d 713, 715, 720-21 (2d Cir. 1983), courts have declined
to reach the same conclusion about parties other than disappointed bidders. See, e.g., Rubber
Millers, Inc. v. United States, 596 F. Supp. 210, 213 (D.D.C. 1984) (a "disappointed potential
subcontractor" was not within zone of interests of procurement statutes); see also Courtney v.
Smith, 297 F.3d 455, 461, 466-67 (6th Cir. 2002) (government employees' "interest in retaining
... government jobs" was not within the zone of interests of procurement statutes).
For these reasons, the Court finds that Plaintiffs' interests in a productive and moraleboosting work environment are not "arguably within the zone of interests to be protected or
regulated by" 41 U.S.C. § 3301 because they are "so marginally related to ... the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to permit
[this] suit." Patchak, 132 S. Ct. at2210 (first quoting Camp, 397 U.S. at 150; then quoting
Clarke, 479 U.S. 399). As a result, Plaintiffs have not "adequately pled a claim" under that
statute, Chabad Lubavitch, 768 F.3d at 201, and their§ 3301 claim is therefore dismissed.
In their opposition brief, Plaintiffs also make "prudential standing" arguments with
respect to Executive Order 11988 and 40 U.S.C. § 3307. Opp. Br. at 10-11. Plaintiffs reference
Executive Order 11988 in a single sentence in the fact section of their Complaint, Comp. if 83,
but do not invoke the violation of Executive Order 11988 as a basis for any cause of action or

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relief. See id. iii! 89-108; id at 14. The same is true of Plaintiffs' vague reference to 40 U.S.C.

§ 3307, which does not even name the statute but instead merely notes that "congressional
review ... is ... required for leases of this size." Comp. if 83. "[I]t is axiomatic that the
Complaint cannot be amended by briefs in opposition to a motion to dismiss." Muniz v. Morillo,
No. 06-CV-6570 (RJS), 2008 WL 4219073, at *6 (S.D.N.Y. Sept. 10, 2008) (quoting 0 'Brien v.

Nat'! Prop. Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989)). The Court also notes
that its December 9, 2015 order, issued after the GSA filed its motion to dismiss, offered
Plaintiffs an opportunity to amend their pleadings and put them "on notice that declining to
amend their pleadings to timely respond to a fully briefed argument in the ... motion to dismiss
may well constitute waiver of the Plaintiffs' right to use the amendment process to cure any
defects that have been made apparent by the [GSA's] briefing." Dkt. No. 12. Plaintiffs declined
to amend their complaint and instead filed their opposition to the GSA's motion to dismiss. Dkt.
No. 16. Because Plaintiff had ample opportunity to amend its complaint to add these claims but
did not do so, the Court will not consider Plaintiffs' Executive Order 11988 and 40 U.S.C. §
3307 claims.

V.

CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is granted. The Clerk of

Court is directed to close the case. This resolves Dkt. No. 9.
SO ORDERED.

Dated: June')...\ , 2016
New York, New York

United States District Judge

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