from the United States Court of Federal Claims in No.
1:17-cv-00277-EDK, Judge Elaine Kaplan.
Turner, Arnorld & Porter Kaye Scholer, LLP, Washington,
DC, filed a combined petition for panel rehearing and
rehearing en banc for plaintiff-appellant. Also represented
by Nathaniel Edward Castellano.
Westercamp, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, filed a
response to the petition for defendant-appellee. Also
represented by Chad A. Readler, Robert E. Kirschman, Jr.,
Deborah A. Bynum.
Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit
Cleveland Assets, LLC, filed a combined petition for panel
rehearing and rehearing en banc. A response to the petition
was invited by the court and filed by appellee United States.
The petition was first referred to the panel that heard the
appeal, and thereafter the petition for rehearing en banc was
referred to the circuit judges who are in regular active
service. A poll was requested, taken, and failed.
consideration thereof, It Is Ordered That:
petition for panel rehearing is denied.
petition for rehearing en banc is denied.
mandate of the court will issue on August 9, 2018.
Wallach, Circuit Judge, with whom Newman, Circuit Judge,
joins, dissenting from the denial of the petition for
rehearing en banc.
panel holds that "the plain language of 28 U.S.C. §
1491(b)(1) [(2012)] expressly precludes [the Court of Federal
Claims'] jurisdiction over Count II of" Appellant
Cleveland Assets, LLC's ("Cleveland Assets")
complaint, Cleveland Assets, LLC v. United States,
883 F.3d 1378, 1381 (Fed. Cir. 2018), which alleges that a
request for lease proposals ("RLP") issued by the
General Services Administration ("GSA") violates 40
U.S.C. § 3307 (2012), see J.A. 72-73 (Count
II). Although § 1491(b)(1) broadly confers the Court of
Federal Claims with jurisdiction over "any alleged
violation of statute or regulation in connection
with a procurement or a proposed procurement," 28
U.S.C. § 1491(b)(1) (emphasis added), the panel
improper- ly narrows the Court of Federal Claims' §
1491(b)(1) bid protest jurisdiction to alleged violations of
"procurement statute[s]," Cleveland
Assets, 883 F.3d at 1382. Under the proper
interpretation of § 1491(b)(1), I believe the Court of
Federal Claims possessed jurisdiction over Cleveland
Assets' Complaint because Cleveland Assets alleges a
violation of a statute, i.e., § 3307, in connection with
a procurement or proposed procurement, i.e., either Cleveland
Assets' lease agreement or the RLP. Therefore, I
respectfully dissent from the denial of the petition for
rehearing en banc.
Section 1491(b)(1) Confers a Broad ...