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 has moved to transfer this case to the Middle District of Florida pursuant to 28 U.S.C. § 1404 (1982). Section 1404 permits the transfer of a case "for the convenience of parties and witnesses, in the interest of justice." Id. The defendant bears the burden of establishing that transfer is warranted. IBPATU v. Best Painting & Sandblasting Co., 621 F. Supp. 906, 907 (D.D.C.1985). In Coalition on Sensible Transportation, Inc. v. Dole, 631 F. Supp. 1382, 1387 (D.D.C.1986), this Court held that it should accord weight to a plaintiff's choice of forum and should rarely disturb this choice unless the balance is strongly in favor of the defendant. Moreover, the Court held that it has "broad discretion" in making the transfer determination. Id.
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
A. Sovereign Immunity
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 Administrative Procedure Act ("APA") to overcome this limitation. Section 702 provides that,
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States . . . Provided, That . . . nothing herein . . . (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702 (1982) (emphasis added). By its own terms, Section 702 provides a waiver of sovereign immunity only if the action complained of is an agency action and no other relevant statute expressly or impliedly forbids suit against the government.
Thus, the first question presented is whether there has been agency action as defined by the statute.
The APA's definition of an agency action is not phrased in exclusive terms. 5 U.S.C. § 551 (1982). This conclusion is supported by the language of Section 551(13) and by the APA's legislative history, manifesting a Congressional intent that the statute should address a broad spectrum of agency actions. See H.R.Rep. No. 1980, 79th Cong., 2d Sess., 41 (1946), U.S.Code Cong.Serv. 1946, p. 1195. In determining whether Section 702 admits of review in this case, the Court must also consider the Supreme Court's oft echoed theme that "the Administrative Procedure Act's 'generous review provisions' must be given a 'hospitable' interpretation." Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 1510-1511, 18 L. Ed. 2d 681 (1967). On the basis of these considerations, courts have held that almost any act made by an agency can be "agency action." E.g., Standard Oil Company of California, 596 F.2d at 1385 (9th Cir.1979), reversed on other grounds, FTC v. Standard Oil Company of California, 449 U.S. 232, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980). Courts nonetheless require an action to be final before it is termed an agency action. See Board of Supervisors of Fairfax County, Virginia v. McLucas, 410 F. Supp. 1052, 1055 (D.D.C.1976). The Supreme Court has construed the finality element in a "pragmatic" and "flexible" way. See Abbott Laboratories, supra, 387 U.S. at 149-50, 87 S. Ct. at 1515-16.
The Court concludes that at least two agency actions are at issue in this case: SSA's decision to renew its contract with Paradyne for the period of October 1, 1986 through September 30, 1987 and the DOJ's decision to sue Paradyne civilly and criminally in federal court. Some agency action is neither rulemaking nor adjudication. See ITT Corp. v. Electrical Workers, 419 U.S. 428, 442, 95 S. Ct. 600, 609, 42 L. Ed. 2d 558 (1975). Such agency actions, like those at bar, are arrived at informally, without a formal record. See e.g., Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-16, 91 S. Ct. 814, 822-23, 28 L. Ed. 2d 136 (1971). Regardless of the character of an act, the Supreme Court has held that an agency action is one that directly and immediately impacts an individual. Abbott Laboratories, supra, 387 U.S. at 152, 87 S. Ct. at 1517. In Abbott, the Commissioner of Food and Drugs issued regulations requiring that labels and advertisements for prescription drugs bearing proprietary designations also carry corresponding technical names. Drug manufacturers and a manufacturers' association challenged this regulation. At least one factor persuading the Court to grant review was that the impact the regulation had on the petitioners was direct and immediate. Id. at 152, 87 S. Ct. at 1517. The Court stated,
Either they [the petitioners] must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution.