Blackhawk Heating & Plumbing Co. v. Driver

• Decision Date: 19 May 1970
• Docket Number: No. 22956.,22956.
• Citation: 140 US App. DC 31,433 F.2d 1137
• Parties: BLACKHAWK HEATING & PLUMBING CO., Appellant, v. William B. DRIVER et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 31, 433 F.2d 1137 (1970)

BLACKHAWK HEATING & PLUMBING CO., Appellant, v. William B. DRIVER et al.

No. 22956.

United States Court of Appeals, District of Columbia Circuit.

Argued October 3, 1969.

Decided May 19, 1970.

Mr. Michael W. J. Shea, Washington, D. C., with whom Mr. Sheldon I. Cohen, Washington, D. C., was on the brief, for appellant. Mr. Henry J. Staudinger, Washington, D. C., also entered an appearance for appellant.

Mr. Michael C. Farrar, Atty., Department of Justice, for appellees. Thomas A. Flannery, U. S. Atty., Alan S. Rosenthal and Reed Johnston, Jr., Attys., Department of Justice, were on the brief, for appellees.

Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.

TAMM, Circuit Judge:

In the summer of 1968 appellant was invited to submit a bid for the construction of a Veterans Administration hospital in Tampa, Florida. When the bids were opened on October 1, 1968, appellant's was the lowest in amount of the five bids received. (Supp.App. 25.) Pursuant to the Federal Procurement Regulations, an assessment of responsibility was undertaken prior to the awarding of the contract.¹ After completing a careful analysis of appellant's contract responsibility, the contracting officer determined that, under the requirements of the Federal Procurement Regulations and the Veterans Administration Procurement Regulations, appellant was not a responsible prospective contractor; on October 9, 1968, the Veterans Administration advised appellant by telegram that its bid had been rejected. (Brief for the Appellees at 10-11.)

On October 21, 1968, appellant filed suit in the district court in which it sought a temporary restraining order, preliminary, prohibitory and mandatory injunctions, and a declaratory judgment which would have had the cumulative effect of giving the construction contract to Blackhawk and of requiring that all of its future bids be fairly considered. (App. 1-19.) Appellees moved to dismiss the complaint for lack of jurisdiction on the grounds of sovereign immunity and plaintiff's lack of standing to sue. (App. 46.) On January 23, 1969, the district court, in a written opinion, granted appellees' motion to dismiss and denied appellant's motion for a preliminary injunction. Blackhawk Heating & Plumbing Co. v. Driver, 297 F.Supp. 1295 (D.D.C.1969). This appeal followed.

The stated grounds for dismissal present us squarely with the question of whether appellant herein should be deemed to have standing to sue under the circumstances of this case and the criteria stated in our recent decisions in Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970) and Ballerina Pen Co. v. Kunzig, 140 U.S.App.D.C. ____, 433 F. 2d 1204 (1970), and under the Supreme Court's recent statements in Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Those cases clearly indicate that the question of standing is a preliminary matter which does not go to the merits of the case. In rejecting the "legal interest" test in Data Processing, the Court noted: "The `legal interest' test goes to the merits. The question of standing is different." 397 U.S. at 153, 90 S.Ct. at 830. The Court had previously enunciated this distinction in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in which it was said:

Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.

392 U.S. at 99, 88 S.Ct. at 1952 (emphasis added.)

The criteria for standing which were enumerated in the above cases indicate that a party aggrieved in fact by agency action has standing to challenge that action, even in the absence of "person aggrieved" language in the statute under which the agency action is taken, if he is able to demonstrate injury in fact, if he is able to show that the interest he asserts is "arguably" within the zone of interests the statute seeks to protect, and if a perusal of the statute reveals no legislative intent that judicial review should be withheld. Data Processing,supra, 397 U.S. 150, 90 S.Ct. 827; Scanwell Laboratories,supra, 137 U.S.App.D.C., at 378, 381 n. 10, 381, 384, 424 F.2d at 866, 869 n. 10, 869, 872; Ballerina Pen Co.,supra, 433 F.2d at 1204; Barlow,supra, 397 U.S. 159, 90 S.Ct. 832; Lodge 1858, Am. Fed'n of Gov't Employees v. Paine, No. 22,006 (D.C.Cir. April 21, 1970) (concurring opinion at 32). Application of those criteria to the present case compels the conclusion that appellant has standing to challenge the instant agency action. As we held in Scanwell Laboratories and Ballerina, one who alleges that an agency has acted arbitrarily or in excess of its authority in denying him a government contract is a proper party to "satisfy the public interest in having agencies follow the regulations which control government contracting." Scanwell Laboratories,supra, 137 U.S.App.D.C. at 376, 424 F.2d at 864. It was stated that one who could demonstrate that the government had abused its discretion in contracting would be permitted to sue in the district court to vindicate the public interest as a "private attorney general"² under section 10 of the Administrative Procedure Act.³ The decision of the district court must therefore be reversed to the extent that it holds that Blackhawk has no standing to sue.

II

Fortunately, the inquiry does not end with a determination that the plaintiff has standing; rather, the inquiry begins in more relevant detail at that point. As we noted in Scanwell Laboratories and Ballerina, the mere fact that a party has standing to sue does not entitle him to render uncertain for a prolonged period of time government contracts which are vital to the functions performed by the sovereign.⁴ The recent decisions in this court and in the Supreme Court have served to eliminate the artificial barrier created by the concept of standing, but that does not mean that the traditional legitimate bars to frivolous lawsuits have also been abrogated.

Rather than denying access to the courts to all litigants who make claims of arbitrary and capricious agency action on the ground that there will be unmeritorious suits from time to time — a process which also has the effect of barring plaintiffs who have legitimate grievances — we have determined that considerations of standing have nothing to do with the merits of the controversy and that the summary judgment procedure contemplated by Rule 56 of the Federal Rules of Civil Procedure will serve admirably to eliminate the frivolous lawsuits which might occasionally arise. Subsection (c) of that rule provides that "the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.) As Judge, later Justice, Cardozo has stated:

The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial.

Richard v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111 (1926).

It has been held many times that this objective is attainable when a party is able to pierce the pleadings and show through the documents before the court that there are no genuine issues of material fact to be tried. See Scarboro v. Universal C.I.T. Credit Corp., 364 F.2d 10, 15 (5th Cir. 1966); Gauck v. Meleski, 346 F.2d 433 (5th Cir. 1965). We have held in this circuit that summary judgment may be granted if there are no genuine issues of material fact even though such issues are technically and formally raised in the pleadings. Richardson v. Rivers, 118 U.S.App.D.C. 333, 335 F.2d 996 (1964). As we said in the leading case of Dewey v. Clark, 86 U.S.App.D.C. 137, 143, 180 F.2d 766, 772 (1950):

There may be no genuine issue even though there is a formal issue. Neither a purely formal denial nor, in every case, general allegations, defeat summary judgment. * * * Formalism is not a substitute for the necessity of a real or genuine issue. Whether the situation falls into the category of formalism or genuineness cannot be decided in the abstract * * *.

Due to the penetrating analysis given the current case by the learned trial judge in his decision, we need not determine these issues in the abstract.

The Federal Procurement Regulations provide the standards to be used by the contracting officer in ascertaining the responsibility of the prospective contractor (see note 1 supra.) The responsibility of the officer to make such a determination is clearly set forth at 41 C.F.R. § 1 — 1.310 — 6(a) (1970):

No contract shall be awarded to any person or firm unless the contracting officer has first determined that such person or firm is responsible within the meaning of §§ 1 — 1.310 — 4 and 1 — 1.310 — 5. The signing of a contract shall be deemed to be a certification by the contracting officer that he has determined that the prospective contractor is responsible with respect to that contract.⁵

In carrying out the mandate of the regulations, the contracting officer in this case made a thorough review of appellant's past performance on previous government construction contracts.⁶ On the basis of the affidavits and authenticated documents filed by appellees in support of their motion to dismiss below, the district judge determined that the contracting officer had acted within the scope of his statutory powers and that he...