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Cleveland Assets, LLC v. United States

United States Court of Appeals, Federal Circuit

August 2, 2018

CLEVELAND ASSETS, LLC, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of Federal Claims in No. 1:17-cv-00277-EDK, Judge Elaine Kaplan.

          Stuart 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.

          Kara 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.

          Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

          ORDER

          PER CURIAM.

         Appellant 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.

         Upon consideration thereof, It Is Ordered That:

         The petition for panel rehearing is denied.

         The petition for rehearing en banc is denied.

         The 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.

         The 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.

         Discussion

         I. Section 1491(b)(1) Confers a Broad ...


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