379 F.3d 901 (10th Cir. 2004), 02-2214, City of Albuquerque v. United States Dept. of Interior

Docket Nº:02-2214.
Citation:379 F.3d 901
Party Name:CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF the INTERIOR, Defendant-Appellee.
Case Date:July 27, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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379 F.3d 901 (10th Cir. 2004)

CITY OF ALBUQUERQUE, Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF the INTERIOR, Defendant-Appellee.

No. 02-2214.

United States Court of Appeals, Tenth Circuit

July 27, 2004

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Charles W. Kolberg (Robert M. White, City Attorney, with him on the briefs), Assistant City Attorney, Albuquerque, NM, for Plaintiff-Appellant.

Hugo Teufel III (David C. Iglesias, United States Attorney, and Raymond Hamilton, Assistant United States Attorney, Albuquerque, NM; and James Weiner, Department of the Interior, Washington, DC, with him on the brief), Associate Solicitor, Department of the Interior, Washington, DC, for Defendant-Appellee.

Before SEYMOUR, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit Judges.

BRORBY, Circuit Judge.

BACKGROUND

The City of Albuquerque ("the City") appeals the district court's order granting defendant the United States Department of the Interior's ("Interior") motion to dismiss. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1), determining it lacked subject matter jurisdiction to hear the City's case challenging Interior's procedures used in selecting a site for new office space in Albuquerque, New Mexico. City of Albuquerque v. United States Dep't of the Interior, 217 F.Supp.2d 1194, 1197 (D.N.M.2002). We disagree. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand for further proceedings consistent with this opinion.

The heart of this dispute is a 2001 Solicitation for Offers issued by Interior for the provision of office space to house the Office of the Special Trustee for American Indians. According to the City's complaint, throughout the site selection process the City contacted Interior and recommended

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property within Albuquerque's central business area. Notwithstanding the City's encouragement, Interior ultimately selected a location outside Albuquerque's central business area.

Upon learning of Interior's selected site, the City filed a complaint in the United States District Court for the District of New Mexico. The complaint "challenges the procedures [Interior] used in reaching a final agency decision with respect to the site selection." Specifically, the City alleges Interior's selection process violated Executive Order 12,072 and its accompanying regulations. See Exec. Order No. 12,072, 43 Fed.Reg. 36,869 (Aug. 16, 1978); 41 C.F.R. § 101-17.001 to 17.049 (2000).

Executive Order 12,072 provides "[e]xcept where such selection is otherwise prohibited, the process for meeting Federal space needs in urban areas shall give first consideration to centralized community business area and adjacent areas of similar character, including other specific areas which may be recommended by local officials." Exec. Order No. 12,072 § 1-103. Similarly, the associated regulations instruct "[i]n meeting space needs in urban areas ... [f]irst consideration shall be given to a centralized business area and adjacent areas of similar character." 41 C.F.R. § 101-17.002(c)(1) (2000). The regulations further state "[s]pace needs shall be met outside the central business area only when one of [four] exceptions ... apply." Id. at §§ 101.17.002(c)(1), (m)(4).

The City alleges Interior violated the Executive Order and associated regulations through several actions during the selection process. First, the City alleges Interior "disqualified the only offer that involved construction within the Central Business Area of the City of Albuquerque ... based on criteria not expressed in the Solicitation and not affecting the suitability of the site. [Interior] later announced that it was rescinding that disqualification." Second, the City alleges Interior "refused to consider available property recommended by local officials." Third, the City alleges the costs for a site within the centralized business area were comparable to the costs of the site Interior selected outside the area. Finally, the City criticizes Interior for "us[ing] a lack of open space as a basis for rejecting a site [within the centralized business area]" thereby giving "preference to suburban locations over [centralized business area locations]." In sum, the City believes Interior preferred a site outside the centralized business area and impermissibly manipulated the selection process to select that site.

In response to the City's complaint, Interior filed a motion to dismiss, arguing the district court lacked subject matter jurisdiction to hear the case. Interior asserted the City's complaint amounted to nothing more than a bid protest which, under the Administrative Dispute Resolution Act, must be brought in the United States Court of Federal Claims rather than federal district court. See 28 U.S.C. § 1491(b) note (2004) (Sunset Provision). Interior also argued the City lacks standing and was untimely in bringing the suit.

After allowing the City to respond to Interior's motion, the district court granted Interior's motion to dismiss, determining it did not have subject matter jurisdiction to adjudicate bid protests under either the Administrative Dispute Resolution Act or the Administrative Procedure Act. Albuquerque, 217 F.Supp.2d at 1195-97. Because the district court concluded it had no jurisdiction to adjudicate the City's claim, it did not address Interior's standing and timeliness arguments. See id. at 1195 n. 1.

DISCUSSION

On appeal, the City challenges the district court's dismissal of the City's claim

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for lack of subject matter jurisdiction. The City argues its cause of action challenging improper agency action was properly brought in federal district court under the Administrative Procedure Act.

In response, Interior urges us to affirm the district court's decision to dismiss the complaint because the court lacks subject matter jurisdiction. Interior further asserts the City's appeal must fail because the City has no standing under the Administrative Procedure Act. Lastly, Interior argues the City's action is moot.

For the reasons stated below, we agree with the City the district court erred in concluding it lacked subject matter jurisdiction in this case. We also conclude Interior's standing arguments and mootness arguments are unpersuasive. Therefore, we reverse and remand for further proceedings consistent with this opinion.

A. Subject Matter Jurisdiction

We begin by examining whether the district court has subject matter jurisdiction. We review the district court's determination on this issue de novo. U S West Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999), cert. denied, 528 U.S. 1106, 120 S.Ct. 845, 145 L.Ed.2d 713 (2000). Motions to dismiss for lack of subject matter jurisdiction "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826 (2003). Here, Interior's motion was a facial attack on the City's assertion of subject matter jurisdiction in the complaint. See Albuquerque, 217 F.Supp.2d at 1195-96. "Accordingly, we presume all of the allegations contained in the ... complaint [are] true." Ruiz, 299 F.3d at 1180. With this standard in mind, we turn to the complaint's assertion of jurisdiction.

The City's complaint alleges the district court "has jurisdiction over this cause of action under [the Administrative Procedure Act,] 5 U.S.C.§ 704, to review final agency action for which there is no other adequate remedy in a court." In this appeal, the City similarly argues "[t]he Administrative Procedure[ ] Act ... supplies district courts jurisdiction to hear alleged violations of [the Executive Order at issue here]."

The Supreme Court, however, has instructed us "the [Administrative Procedure Act] is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions." Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Because the Administrative Procedure Act does not confer subject matter jurisdiction, we must look elsewhere to determine whether subject matter jurisdiction exists in this case. See Eagle-Picher Indus., Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir. 1990); Alamo Navajo Sch. Bd., Inc. v. Andrus, 664 F.2d 229, 232 (10th Cir. 1981).

We begin with the general federal question statute, 28 U.S.C.§ 1331.1 It

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grants the district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. While this grant of authority is broad, § 1331 "does not waive the government's sovereign immunity." Eagle-Picher Indus., 901 F.2d at 1532. District court jurisdiction in this case can be based on § 1331 only if there is some other statute waiving sovereign immunity. See New Mexico v. Regan, 745 F.2d 1318, 1321 (10th Cir. 1984).

In search of a waiver of sovereign immunity, we return to the Administrative Procedure Act. It "contains a limited waiver of the United States' sovereign immunity." Id. The relevant section states:

A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action ... seeking relief other than money damages ... shall not be dismissed ... on the ground that it is against the United States.

5 U.S.C. § 702. This waiver is limited because it does not "confer[ ] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." I...

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