Progressive Indus., Inc. v. United States

• Decision Date: 30 April 2018
• Docket Number: 2017-1941
• Parties: PROGRESSIVE INDUSTRIES, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee Irish Oxygen Company, Defendant
• Court: U.S. Court of Appeals — Federal Circuit

888 F.3d 1248

PROGRESSIVE INDUSTRIES, INC., Plaintiff-Appellant

v. UNITED STATES, Defendant-AppelleeIrish Oxygen Company, Defendant

2017-1941

United States Court of Appeals, Federal Circuit.

Decided: April 30, 2018

Mary F. April, McDonald Hopkins, LLC, West Palm Beach, FL, argued for plaintiff-appellant. Also represented by Tyler Lee Mathews, Cleveland, OH.

Antonia Ramos Soares, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Douglas K. Mickle.

Before Prost, Chief Judge, Mayer and Reyna, Circuit Judges.

Prost, Chief Judge.

Appellant Progressive Industries, Inc. ("Progressive") appeals the decision of the Court of Federal Claims ("Claims Court"), denying Progressive's Motion for Reconsideration of Amended Judgment Pursuant to Rule 59(e) or, in the Alternative, for Relief from Final Judgment Pursuant to Rule 60(b). We affirm.

I

This bid protest pertains to the Department of Veterans Affairs's ("VA") procurement of medical gases for certain medical facilities maintained by the VA. In response to the VA's initial solicitation, six offerors submitted proposals. Three companies were eventually determined to be in the competitive range: RAS Enterprises LLC ("RAS"), Irish Oxygen Co. ("Irish"), and Progressive. J.A. 2798.

On the merits, Progressive won its protest in part. J.A. 2796–832; Progressive Indus., Inc. v. United States , 129 Fed.Cl. 457 (2016). In its October 31 Opinion and Order ("October 31 Order"),¹ the Claims Court found the VA had, among other things, treated the offerors inconsistently when it established the competitive range and that this unequal treatment prejudiced Progressive.

Despite its initial victory, however, Progressive did not obtain the full result it desired. On November 1, the day after issuing its decision, the Claims Court issued another order ("November 1 Order"). J.A. 2768–69. This order enjoined the VA from awarding the contracts to RAS and Irish, vacated the existing awards to those companies, and directed the Clerk of the Court to enter judgment remanding the case to the VA for appropriate action consistent with the October 31 Order. J.A. 2769. The November 1 Order also stated that "[n]o costs are awarded to plaintiff," referencing Progressive's prior request for costs and attorney fees. Id. The order further stated that Progressive could file a motion for the court to reconsider its decision regarding attorney fees by December 1, 2016. Id.

Based on the October 31 and November 1 Orders, judgment was entered in Progressive's favor on November 2, 2016. J.A. 2770. The one-page judgment stated, in relevant part:

IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 58, that the VA is enjoined from awarding the contract to RAS Enterprises, LLC and Irish Oxygen Company, and the VA's decision to award the contract to RAS Enterprises, LLC and Irish Oxygen Company is vacated. This case is remanded to the contracting officer for appropriate action consistent with the court's Opinion and Order of October 31, 2016. No costs.

Id. The judgment also stated: "As to appeal, 60 days from this date, ...." Id.

On November 3, the day after judgment was entered, the VA filed a Motion for Leave to Submit Status Report Regarding Compliance with the Court's Injunction, and, in the Alternative, Emergency Motion to Modify Court's Injunction. J.A. 2771–76. The VA's motion explained the VA's need to continuously supply medical gases and informed the court of its plan to award emergency bridge contracts to RAS and Irish while it resolicited the contract consistent with the Claims Court's opinion. The motion requested that, if the court did not consider the VA's proposed course of action to be consistent with the November 1 Order, the court modify its injunction to permit the VA to continue performance of the current contracts for seven days until the VA could put bridge contracts in place. J.A. 2772.

The next day, without receiving a response from Progressive, the Claims Court in a November 4 Order granted the VA's motion for leave to file the status report and stated that it "[did] not deem the proposed course of action to be non-compliant." J.A. 2777.

Later that day, Progressive filed a motion for reconsideration of the November 4 Order, explaining that Progressive could just as easily supply the necessary medical gases if awarded the emergency bridge contracts. J.A. 2778–80. In the same motion, Progressive asked for an opportunity to explain its "entitlement to compensation for the severe economic harm it has suffered as a result of the loss of the opportunity to supply facilities ... covered by the contracts at issue." J.A. 2780.

On November 15, the Claims Court denied most of Progressive's motion, but granted the motion to a limited extent. J.A. 2781–83. With regard to Progressive's claim of entitlement to compensation for economic harm, the court explained that the Tucker Act permits the court to "award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs." J.A. 2783 (quoting 28 U.S.C. § 1491(b)(2) ). Based on the statute, the court emphasized that it did not have authority to compensate Progressive for lost profits. The court then stated: "To the extent that Progressive wishes to recover costs incurred in connection with its bid protest, plaintiff may file a motion for relief from the court's November 1, 2016 Order by no later than Friday, January 13, 2017, and include the relevant legal analysis supporting its request for costs." J.A. 2783 (emphasis omitted).

Later that day, Progressive filed an Emergency Motion for Clarification and Extension of Time. J.A. 2784–88. The Emergency Motion explained that Progressive had intended to file its motion for attorney fees and its bill of costs within 30 days of the final judgment, pursuant to Rule 54(d) of the Rules of the Court of Federal Claims ("RCFC"), with final judgment being defined according to the Equal Access to Justice Act ("EAJA") provisions. See 28 U.S.C. § 2412(d)(2)(G). The motion therefore asked the court to vacate the portion of its November 1 Order that stated Progressive was not entitled to attorney fees and costs and that set a deadline (not based on the EAJA provisions) for Progressive to file a motion for reconsideration of that decision. Separately, but in the same motion, Progressive also noted its intent to file a motion for relief from the November 1 Order regarding Progressive's entitlement to bid preparation and proposal costs, as the court had permitted in its November 15 Order. J.A. 2787 n.2. Progressive did not seek to alter the deadline for that motion.

Three days later, on November 18, the Claims Court issued a "Scheduling Order," granting Progressive's request to extend the time to file a motion for attorney fees and costs and setting the deadline consistent with the EAJA deadline. J.A. 2789–90. The Claims Court construed the request to vacate part of the November 1 Order as a Rule 60 motion and set a briefing schedule for that motion. J.A. 2790.

On November 23, five days after the court's Scheduling Order, the court sua sponte issued another order ("November 23 Order"). J.A. 2791–94. This order: (a) withdrew the November 18 Scheduling Order altogether; (b) stated that because the November 1 Order had "created confusion" regarding Progressive's ability to file a motion for attorney fees and costs, the court was correcting the November 1 Order via Rule 60(a); (c) stated that the November 23 Order would "supersede[ ]" the November 1 Order; (d) stated that the court was "withdraw[ing]" from the November 1 Order the paragraphs that denied attorney fees and costs and "reissu[ing]" the November 1 Order on that date (November 23); (e) directed the Clerk to "amend" the November 2 judgment to remove the "[n]o costs" language, but otherwise leave the judgment "undisturbed"; and (f) vacated the January 13 deadline for Progressive to file a motion for relief and instead indicated that Progressive could make a motion for attorney fees and costs according to the deadlines in RCFC 54(d). J.A. 2791–92. Nothing in the November 23 Order pertained to the merits of Progressive's protest.

The same day, the Claims Court entered an Amended Judgment. J.A. 2795. The only difference between the original judgment and the Amended Judgment was the removal of the sentence that read: "No costs." Like the original judgment, the Amended Judgment included the language: "As to appeal, 60 days from this date, ...."

On December 20, Progressive filed a Motion for Reconsideration of Amended Judgment Pursuant to Rule 59(e) or, in the Alternative, for Relief from Final Judgment Pursuant to Rule 60(b) ("Motion for Reconsideration"). J.A. 2833–49. The Motion for Reconsideration asked the Claims Court to modify the Amended Judgment to direct the VA to reevaluate the bid proposals within the competitive range, rather than resolicit the contracts altogether. Progressive had not previously requested this type of tailored relief. Progressive argued that manifest injustice would result if the VA was permitted to resolicit the contract because Progressive would be unable to compete for the new award.² In Progressive's view, this would effectively allow the VA to award contracts to RAS and Irish as it originally had done, despite the Claims Court's holding that the VA unreasonably conducted the procurement in a manner that prejudiced Progressive.

The Claims Court denied Progressive's Motion for Reconsideration on February 21, 2017. J.A. 18–27; Progressive Indus., Inc. v. United States , 131 Fed.Cl. 66 (2017).³ The Claims Court first held that the motion could not be considered under Rule 59(e) because it was not filed within the Rule 59(e) deadline. Second, the Claims Court held that Progressive had not demonstrated the "extraordinary...