U.S. v. John C. Grimberg Co., Inc., s. 83-506

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtMARKEY; NICHOLS; KASHIWA, Circuit Judge, with whom BALDWIN, BENNETT, and JACK R. MILLER; BENNETT, Circuit Judge, with whom BALDWIN, KASHIWA, and JACK R. MILLER
Citation702 F.2d 1362
Parties30 Cont.Cas.Fed. (CCH) 70,884 UNITED STATES, Appellant/Cross-Appellee, v. JOHN C. GRIMBERG CO., INC. and W.M. Schlosser Co., Inc., Appellees/Cross-Appellants. Appeal
Docket NumberNos. 83-506,83-511,s. 83-506
Decision Date23 March 1983

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., argued for appellant/cross-appellee. With him on brief were David M. Cohen and Eileen P. Fennessy, Washington, D.C.

Herman M. Braude, Washington, D.C., argued for appellees/cross-appellants. With him on brief was Gerson B. Kramer and Douglas L. Patin, Washington, D.C.

Before the Court In Banc.

MARKEY, Chief Judge.

Disappointed bidders Grimberg and Schlosser jointly filed a post-award complaint in the Claims Court seeking termination and award to them of certain contracts awarded to another. They concurrently filed motions for a Temporary Restraining Order and a Preliminary Injunction. The Claims Court denied the motions and transferred the complaint to the District Court for the District of Columbia, 1 Cl.Ct. 253. We affirm. 1


P.W. Parker Inc. (Parker), was the apparent winner on two contract bids opened on July 8, 1982, and September 13, 1982, respectively. On its bids, Parker identified its wholly-owned subsidiary, R & P Contractors (R & P), as subcontractor on all mechanical work.

On July 12, 1982, Grimberg protested to the GSA contracting officer that the listing

of R & P, over which Parker had complete control, violated paragraph 10 of the Special Conditions of the Invitation for Bid. 2 By letter of July 29, 1982, the contracting officer acknowledged the protest, stating: "The bids are being evaluated by the contracting officer, and you will be advised of his decision."

On September 16, 1982, Schlosser made the same protest to the contracting officer respecting the bid opened on September 13, 1982. By letter of September 20, 1982, the contracting officer acknowledged the protest, stating: "The bids are being evaluated and you will be advised of our decision before an award is made."

On September 29 and 30, GSA awarded Parker the contracts. 3

Grimberg and Schlosser jointly filed on October 4, 1982, the present complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Judgment, and concurrently filed Motions for a Temporary Restraining Order and Preliminary Injunction. On October 5, 1982, the government moved to dismiss for lack of jurisdiction.

In an Order entered October 7, 1982, Judge Willi of the Claims Court denied Grimberg's and Schlosser's motions for lack of jurisdiction under 28 U.S.C. Sec. 1491(a)(3) (Supp V 1981), as amended by Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, Sec. 133(a), 96 Stat. 25, 40 (1982) (Act), 4 and transferred the case to the district court pursuant to Sec. 301(a) of the Act [to be codified at 28 U.S.C. Sec. 1631]. 5


I) Whether the Claims Court lacks jurisdiction to grant equitable relief in a suit brought after a contract has been awarded.

II) Whether the Claims Court erred in transferring the case.


The dispute respecting jurisdiction arises because the complaint was filed in the Claims Court after the award of the contracts, making this a "post-award" suit, and because Grimberg and Schlosser are seeking equitable and only equitable relief.

A. The Statute

Analysis must begin with the language of the statute. Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). See also, Greyhound Corp. v. Mount Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977); Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J. concurring). Title 28, Section 1491(a)(3), supra note 4, reads in pertinent part: "To afford complete relief on any contract claim brought before the contract is awarded, the court shall have ... jurisdiction to grant declaratory judgments and ... equitable ... relief .... In exercising ...."

As discussed below, subsection (a)(3) is composed of five parts. The first part ("To afford complete relief") sets the purpose of its enactment, i.e., to authorize a new remedial power. The second part ("on any contract claim") establishes and limits the types of cases within the court's jurisdiction in which the power may be exercised. The third part ("brought before the contract is awarded") establishes and limits the time frame in which the power may be exercised. The fourth part ("declaratory judgments and such equitable and extraordinary relief as it deems proper") describes the power itself. The fifth part ("give due regard to the interests of material defense and national security") cautions the court in the use of its new power.

(1) The Single Word "Claim"

Grimberg and Schlosser would have us read subsection (a)(3) as though it contained words not there ("brought to the contracting officer before the contract is awarded", or "brought to court before or after the contract is awarded"), and as though it authorized the court to exercise its new power at any time. Their sole basis for suggesting that the statute may be so read lies in the single word "claim" in subsection (a)(3), and a contention that it means a claim filed with the contracting officer. They maintain that the filing of a claim with the contracting officer before the contract is awarded is sufficient to confer jurisdiction in the Claims Court to grant equitable relief in response to a complaint based on that claim, no matter when that complaint is filed in that court. Grimberg and Schlosser's difficulty is that the statute simply does not say "The Claims Court may grant equitable relief on a contract claim at any time if the claim had been brought to the contracting officer before the contract was awarded", and we are not at liberty to rewrite the statute in those terms.

Grimberg and Schlosser have been aided, in erecting their argument on the single word "claim", by the propensity of the Congress, the courts, and others, for using that word to mean different things in different contexts. In connection with government agencies, the word has meant an assertion or demand submitted to the agency. In connection with courts, it has been used to mean an "action", or a cause of action, or an assertion in a pleading.

That the word "claim", standing alone, may be considered ambiguous because it has been used with different meanings in different statutes, is true but unavailing. Nor is it helpful to note that most if not all "claims" against the government existed, or became vested, or were made to or filed with a government agency, as "claims" before

being brought to a court. It is hard to visualize a "claim" properly called such in court which did not accrue as a "claim" at some time earlier than its presentation in court. Indeed, the entire statute of limitations jurisprudence rests on that concept

Nor does it aid decision to note Congress' frequent use of "claim" in referring to both pre-court and in-court situations, often interchangeably. Nor does it follow that interpretation of "claim" as an action in court means that it was not also a "claim" at an earlier time. "Claim" cannot be considered in a vacuum. We sit to interpret a statute, not a word.

(2) As Used In the Statute

In Erlenbaugh v. U.S., 409 U.S. 239, 244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972), the Court referred to "the principle that individual sections of a single statute should be construed together ...." We look, therefore, to uses of "claim" in all of the portions of Sec. 1491(a). In doing so, we note Sec. 1491(a) is a statute dealing with a court and suits against the sovereign. Section 1491(a) grants subject matter jurisdiction (subsection (a)(1); last sentence of (a)(2)), authorizes certain remedial actions (forepart of (a)(2)), and permits the exercise of equitable power in certain cases at a certain time ((a)(3)). 6

Subsection (a)(3) is thus part of a statute (Sec. 1491(a)) in which Congress has defined the jurisdiction of the Claims Court to hear and determine suits and has spelled out actions the court may take in particular cases within that jurisdiction. Comparison of the grant in subsection (a)(3) with the grant in the adjacent subsections of the same statute, Title 28, Section 1491(a), supra note 4, (general jurisdiction "to render judgment upon any claim against the United States" in subsection (a)(1), and "to render judgment upon any claim by or against ... a contractor" in subsection (a)(2)) (emphasis added) would indicate that Congress intended a limited grant of power to grant an equitable remedy in subsection (a)(3) ("on any contract claim brought before the contract is awarded").

"Claim" appears in subsections (a)(1) and in the last sentence of (a)(2), supra note 4, in the phrase ("jurisdiction to render judgment upon any claim") granting subject matter jurisdiction. 7 In those instances, "claim" necessarily means a claim filed with the Claims Court, for the court would necessarily lack both jurisdiction and ability to "render judgment" on a claim not filed in the court. Similarly, "contract claim" appears in (a)(3) immediately after "To afford complete relief on any ...." Thus the "contract claim" must be both within the court's jurisdiction established in subsection (a)(1) and brought to the court before the court may grant any relief.

Further, a plaintiff may not obtain equitable relief just because a court has the power to grant it, but must state a claim which is itself within the jurisdiction of the court. Appropriately, therefore, subsection (a)(3) specifies the nature of the "claim" upon which declaratory judgments and equitable relief may be granted, namely a "contract claim". Subsection (a)(3) thus provides a new remedy in respect...

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