The opinion of the court was delivered by: GASCH
Paradyne Corporation ("Paradyne") entered into a one-year contract with the Social Security Administration ("SSA") in 1981 to supply computer equipment and maintenance services for the equipment. The contract is renewable at the Government's discretion each year until 1989 and has been renewed every year since 1981, including the term 1986-87. Notwithstanding SSA's actions, the Department of Justice ("DOJ") has instituted both criminal and civil law suits against Paradyne on the ground that the corporation defrauded the United States to win the contract.
In its motion, Paradyne claims that the issue before the Court is purely legal:
May the United States Government, through the Department of Justice, threaten a corporation with criminal prosecution, civil penalties, double damages and forfeiture of its profits for performance under a contract it has declared to be null and void, while another agency of the same government [SSA] continues to demand that performance?
See Plaintiff's Motion for Summary Judgment at 9. Paradyne claims that if its rights and duties are not clarified by the Court it will be forced to either breach its contract with the SSA, perform without pay or proceed in the face of possible civil or criminal prosecution. Paradyne seeks a declaration by the Court that these executive agencies cannot maintain their inconsistent postures.
On June 10, 1980, the SSA issued a request for proposals ("RFP") to replace its nationwide automated data processing system and communications network, known as the Social Security Administration Data Acquisition and Response System ("SSADARS"). The RFP specified several conditions. Inter alia, these systems were to be kept available for lease to the SSA on a year-to-year basis for at least eight years. The successful contractor would be required to provide maintenance on these computers for the same period.
On March 27, 1981, the SSA awarded the one-year SSADARS contract to Paradyne Corporation, the low bidder. See Contract No. 600-18-0056. At present, Paradyne is still performing under this contract, the SSA having exercised its option to extend the contract every year since 1981. Each year the SSA expends nearly $8 million to lease and maintain the SSADARS system. Despite early allegations by the government that Paradyne's products failed to meet RFP specifications, SEC v. Paradyne Corporation, C.A. No. 83-351 at 13 (M.D.Fla. March 25, 1983), in March of 1985 HHS wrote, "There is . . . no basis for taking action [against Paradyne] under the [contract] provision related to performance . . . nor is there a history of unsatisfactory performance beyond that anticipated and provided for in the contract . . . [Paradyne's] performance today is satisfactory." See Department of Health & Human Services Study Team, Report on the SSADARS Contract to the Paradyne Corporation, at 14, 27 (March 12, 1985). There can be no doubt today that the system performs satisfactorily.
Notwithstanding the performance of Paradyne's information communication system, the government questions whether Paradyne legitimately obtained its contract with the SSA. On July 14, 1982, Congressman Brooks, Chairman of the House Committee on Government Operations, began an investigation of the SSADARS procurement. His Committee recommended that the SSA suspend Paradyne. The SSA ignored this suggestion. On November 5, 1982, the Securities and Exchange Commission began an investigation of the SSADARS procurement. The agency filed a civil suit on March 25, 1983, on the basis of this investigation but discontinued it when Paradyne signed a consent decree. The decree did not include any admission of liability by Paradyne. On April 12, 1983, the DOJ subpoenaed Paradyne to produce certain documents to a grand jury in the Middle District of Florida. On December 12, 1985, a grand jury returned an indictment against Paradyne, eight of its current and former officers and employees, and the former director of the Office of Data Communications at SSA, charging conspiracy to defraud, false statements, bribery, perjury, and obstruction of justice. This action is pending and is scheduled to go to trial in January of 1987. Finally, on or about August 6, 1986, the DOJ filed a civil suit against Paradyne, demanding recovery of damages for violations of the False Claims Act, 31 U.S.C. § 3729-31, for each claim submitted by Paradyne under the SSADARS contract and all profits earned by Paradyne on the contract on a common law theory of unjust enrichment. In support of its claim for unjust enrichment, DOJ declared that Paradyne's fraud in obtaining the SSADARS contract rendered that contract null and void.
After reviewing the DOJ's newly filed civil suit, Paradyne's counsel called the DOJ to express concern that, if one accepted the theory of its law suit, Paradyne could arguably be making a "false claim" each time it submitted a monthly invoice for equipment rental and maintenance as required by the 1986-87 contract. Paradyne sought reassurances from the DOJ and the SSA that, if the SSA exercised its option to renew the contract for 1986-87, the DOJ would not seek, on the basis of allegations in its recently filed suit, civil penalties for false claims, criminal indictments, or to recover Paradyne's profits for work performed for the period of the 1986-87 contract renewal. On or about August 28, 1986, the DOJ advised Paradyne that it would not provide any assurances that it would not bring action against Paradyne for future acts. On September 4, 1986, the SSA officially notified Paradyne that it was exercising its option under the SSADARS contract to renew the equipment leases and Paradyne's maintenance obligations for another year, beginning October 1, 1986, and up to and including September 30, 1987. See Modification No. 37 to Contract No. 600-18-0056. In response, Paradyne filed this suit.
III. GOVERNMENT'S MOTION TO TRANSFER
The Government argues that district courts have transferred related cases to other jurisdictions. E.g., Pesin v. Goldman Sachs & Co., 397 F. Supp. 392 (S.D.N.Y.1975). Presently, there are three Paradyne/SSADARS actions pending before the same judge in the Middle District of Florida: the criminal action, the DOJ civil proceeding and two consolidated class-action suits filed by Paradyne stockholders.
Nonetheless, timing is a most important element in this case. On November 1, 1986, Paradyne is due to submit its first invoice on the 1986-87 contract, subjecting itself to potential liability. If the Court were to transfer this case, Paradyne might well be unable to have this dispute resolved in time to avoid being pinched by the vice in which the Government has placed it. Additionally, it is unclear that the Florida court is better suited to decide the case. Fraud, the principal element of the other proceedings against Paradyne, is not at issue here. Moreover, there are no witnesses for whom transfer ought to be effected, and both defendants and all counsel reside in this district. Given these factors, the Court will deny the Government's motion to change venue.
IV. GOVERNMENT'S MOTION TO DISMISS
The United States, as sovereign, cannot be sued absent its consent. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941). The burden is upon the plaintiff to prove that some statute waives sovereign immunity. Id. In the instant case, Paradyne relies on Section 702 of the ...