Campbell v. Schmidt
| Decision Date | 03 November 2020 |
| Docket Number | Case No. 1:20-cv-1785 (CRC) |
| Parties | JOCELYN DIONNE CAMPBELL, Plaintiff, v. WILLIAM S. SCHMIDT, in his official capacity as the Suspension and Debarment Official, Suspension & Debarment Division of the U.S. General Services Administration, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Jocelyn Campbell was debarred—that is, banned from contracting with the federal government—by the U.S. General Services Administration ("GSA"), and therefore lost her management job at a hospice that accepts federal reimbursement. Ms. Campbell sued GSA and two of its officials, claiming that her debarment violated the Administrative Procedure Act ("APA"). She moved for a preliminary injunction lifting her debarment during this litigation.
The record before the Court does not justify a preliminary injunction. Campbell has not demonstrated that she will likely succeed in proving that her debarment was unlawful in any respect. Nor has she carried her heavy burden to show that she faces irreparable harm in the absence of preliminary relief. On the contrary, a preliminary injunction would disserve the public interest by undermining the government's ability to debar contractors who have been duly found to lack responsibility to conduct business with federal agencies. The Court will therefore deny the preliminary injunction motion.
The Federal Acquisition Regulation ("FAR") requires federal agencies to contract only with "responsible contractors." 48 C.F.R. § 9.402(a). "[T]o protect the Government's interest" in avoiding irresponsible contractors, an agency may debar a contractor after following debarment procedures that comply with the FAR. Id. § 9.402(b). Debarment must be used "only in the public interest . . . and not for purposes of punishment." Id. The FAR advises agencies that a contractor's debarment generally should last three years or less. Id. § 9.406-4(a)(1).
Before debarring a contractor, the government must send the contractor a notice, which must state the reasons for the proposed debarment and offer the contractor an opportunity to respond within 30 days. Id. § 9.406-3(c). If the contractor's response raises disputes as to material facts, the government must provide an opportunity for a trial-like hearing and prepare written findings of fact before deciding whether to debar the contractor. Id. § 9.406-3(b)(2), (d)(2)(i). If no material disputed facts are raised, the debarring official simply considers the whole administrative record and decides based on the preponderance of the evidence (or, if applicable, a conviction or civil judgment that warrants debarment). Id. § 9.406-3(d)(1), (3). After being debarred, a contractor may ask the agency to terminate the debarment early. The agency has discretion to grant such post-debarment relief for "reasons the debarring official deems appropriate." Id. § 9.406-4(c)(5).
GSA has established procedures for debarring contractors within its purview, which covers a broad range of federal acquisitions including construction contracts. See id. § 509.401(a). The Suspension and Debarment Official ("SDO") of GSA—currently defendant William Schmidt—is responsible for providing notice of proposed debarments and conductingdebarment proceedings in keeping with the FAR. Id. §§ 509.403, 509.406-3. Once debarred by GSA, a contractor generally may not bid on contracts with any part of the executive branch until the debarment is lifted. Id. § 9.406-1(c).
The following facts are drawn from the record before the Court and are undisputed for purposes of the present preliminary injunction motion. Campbell formed a small business called T3 Resources, Inc. ("T3") in 2003. First Campbell Decl. ¶ 2, ECF No. 3-3. T3 initially focused on construction projects for churches. Id. T3 was eventually certified under Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), which seeks to promote contracting between the federal government and disadvantaged small businesses. First Campbell Decl. ¶ 2. In 2006, T3 entered a formal mentoring relationship, becoming a protégé of Motir Services, Inc. ("Motir"), an established 8(a) business owned by Emmanuel Irono. Id. ¶¶ 3, 6. The Small Business Administration approved that mentor/protégé relationship. Id. ¶ 3. T3 then began contracting with the federal government, in addition to commercial and municipal clients. Id. ¶ 4. T3's business operations ended in 2011. Id. ¶ 5.
Campbell subsequently moved to Nigeria, where she conducted business with the Nigerian government through an entity she owned. Pachter Email (Sept. 2, 2020) at 1, ECF No. 15-2. While living abroad, Campbell used a temporary mailing address in Lithonia, Georgia. First Campbell Decl. ¶ 9.
In 2015, while Campbell was in Nigeria, the FBI contacted her to request an interview as part of an investigation it was conducting into Motir and Mr. Irono. Id. ¶ 6. About two months later, Campbell moved to Birmingham, Alabama, where she would live with her mother until 2017. Id. ¶ 7. Campbell participated in the requested interview at the FBI's Birmingham officein May 2015. Id. According to Campbell, the FBI was aware of the Birmingham address where she was living at the time. Id.
In 2017, Campbell began working as an administrator at Homestead Hospice in Jackson, Georgia. Pachter Decl. Ex. C at JC0007 ¶ 3, ECF No. 3-2. She says she was successful in that job and found personal satisfaction in it. Id. at JC0007 ¶¶ 3-4. In August 2019, while working at Homestead, Campbell incorporated a new company, The Lighthouse Community Hospice, Inc. Second Campbell Decl. ¶ 3, ECF No. 18.
On September 11, 2019, GSA issued a Notice of Proposed Debarment ("Proposal") as to Campbell. Proposal, ECF No. 12-3. According to the Proposal, the FBI's investigation revealed that Motir, T3, and a third company, Dimensional Solutions, Inc. ("DSI"), improperly coordinated government-contract bids without informing the government that they were affiliated. See Proposal 5, 8, 10. The Proposal states that in her FBI interview, Campbell admitted that in connection with DSI's effort to become an 8(a) certified business, she created fake contracts between DSI and other entities, dating to before DSI existed. Id. at 10. Campbell also reportedly admitted to the FBI that she told a colleague to create T3 resumes for Motir employees so T3 could appear to have a larger staff when bidding on government contracts. Id. at 9.
GSA sent the Proposal to the Lithonia, Georgia address that Campbell had used while in Nigeria. First Campbell Decl. ¶ 9. Neither Campbell nor her family lived at the Lithonia address at the time, so she did not receive the Proposal. Id. The Proposal was returned to GSA as unclaimed. Unclaimed Mail Notice, ECF No. 12-5.
On December 18, 2019, GSA sent a final Notice of Debarment to the Lithonia address. Debarment Notice, ECF No. 12-4. The Debarment Notice, signed by then-acting SDO Schmidt,refers to the Proposal and acknowledges that GSA received notice that the Proposal was unclaimed. Id. It then states: "After careful consideration of the information contained in the record in this matter, I have determined that cause for your debarment exists pursuant to Federal Acquisition Regulation (FAR) 9.406-2(c) and that the Government's interest requires your debarment." Id. Campbell was accordingly debarred for a three-year term. Id. As with the Proposal, Campbell did not receive the Debarment Notice. First Campbell Decl. ¶ 12.
Later in December 2019, Campbell learned that she had been debarred after Homestead discovered the debarment in a routine check of the government's online System for Award Management. Homestead told Campbell that she would be terminated unless the debarment was lifted by March 1, 2020. Id.
On January 6, 2020, Campbell's then attorney Edward Arnold spoke by telephone with GSA Integrity Officer Dylan Mooney. Mr. Arnold then emailed Mr. Mooney: Arnold Emails at 3, ECF No. 12-6. On January 21, Arnold again spoke with Mooney. According to GSA's later account of the January 21 call, Continuation Notice, ECF No. 12-12.
Campbell subsequently retained a new attorney, John Pachter. On January 31, Mr. Pachter sent a letter to GSA requesting relief from Campbell's debarment. Pachter Letter (Jan. 31, 2020), ECF No. 12-7. In a declaration attached to this letter, Campbell responded to the Proposal's "insinuations of wrongdoing in T3's relationship with Motir." Pachter Decl. Ex. C atJC0008 ¶ 9. Campbell admitted that she helped DSI gain its 8(a) certification—specifically, she "downloaded contract forms from the web and entered information" she received from DSI founder Anthony Ray. Id. But she disputed the language the Proposal used to characterize this conduct: "I did not 'create' a 'fake contract between DSI and [a third party]' nor did I 'fabricate' another contract between DSI and Motir." Id. Campbell further stated that "[t]he subcontracting relationship between Motir and T3 was not a secret," that the approved mentor/protégé relationship allowed Motir and T3 to share employees, and that such sharing "was the norm" in the field. Id. She also described her success as a hospice administrator, affirmed her commitment to integrity, and reported receiving a perfect score on a recent ethics test. Id. at JC0007-08 ¶¶ 3-4, 10-11.
In early March, Homestead fired Campbell because her debarment was still in place. Pachter Email (March 2, 2020), ECF No. 12-10. The next day, Campbell personally emailed...
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