date of Cimpi's debarment period from December 24, 1990, to June 10, 1990. In their present motion for a preliminary injunction, plaintiffs seek to compel the Secretary to reinstate Cimpi as an eligible government contractor pending a final decision on the merits. The alleged irreparable injury plaintiffs wish to avoid is the loss of Postal Service contract #13731.
In order to prevail on their motion, plaintiffs must demonstrate that they have "a substantial case on the merits." Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). This they have failed to do. First and most importantly, plaintiffs have not made any showing that they exhausted their administrative remedies prior to filing this action. Compare Federal Food Service, Inc. v. Marshall, 481 F. Supp. 816, 817 (D.D.C. 1979) (prior to moving for preliminary injunction, contractor exhausted administrative remedies available for relief from debarment). Cimpi had sixty days to file an administrative appeal of the Administrator's September 1, 1988, denial of his request for an adjustment, see 29 C.F.R. § 8.7(b) (1989), yet he failed to do so. Plaintiffs' counsel apparently was aware of this right of appeal, since he had appealed a similar decision in a different case earlier that same year. See White Way Trucking Inc. v. McLaughlin, 108 Lab. Cas. (CCH) P35,060, at 45,607 (1988).
Plaintiffs' failure to lodge this appeal tolls the death knell for this entire action, and is a sufficient ground alone for granting defendant's motion to dismiss. See McKart v. United States, 395 U.S. 185, 193-95, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Abney v. District of Columbia, 270 U.S. App. D.C. 362, 849 F.2d 1491, 1497 (D.C. Cir. 1988); Klinestiver v. DEA, 196 U.S. App. D.C. 221, 606 F.2d 1128, 1130 (D.C. Cir. 1979).
Second, even if plaintiffs could overcome this obstacle, the SCA is highly unlikely ultimately to afford them the requested relief, i.e., termination of Cimpi's debarment period in time for Cimpi to become eligible for renewal of Postal Service contract #13731. If the Act itself leaves any doubt, the implementing regulations unequivocally establish that the ninety day period for forwarding the name of a violator does not begin to run until the ALJ's decision becomes final. See 29 C.F.R. § 6.21. An aggrieved party has forty days to appeal an ALJ's order. See id. §§ 6.19(b), 6.20. In this case, therefore, the order did not become final until August 1, 1987, forty days after the ALJ issued his June 22, 1987, amended decision and order. Accordingly, the Secretary should have forwarded Cimpi's name to the Comptroller by October 30, 1987, four days earlier than she actually did. However, even if Cimpi were entitled to a four day adjustment, and thus would be eligible for new contract awards after December 20, 1990, instead of December 24, 1990, he would remain ineligible for renewal of Postal Service contract #13731, which expires on June 30, 1990.
Moreover, the Act expressly provides that the three year debarment period runs from the date of publication of the violator's name on the debarment list, not the date on which the Secretary forwarded the violator's name to the Comptroller. See 41 U.S.C. § 354(a). In this case, almost two months elapsed between the date of forwarding and the date of publication. The Secretary had nothing to do with this delay; publication of forwarded names is the responsibility of the Comptroller. See id. Plaintiffs have not named the Comptroller in this action and nowhere do they claim that the delay was unlawful. In light of these circumstances, even if the Secretary had forwarded Cimpi's name by June 10, 1987, there is no reason to believe that it either would or should have been placed on the debarment list prior to June 30, 1987. By failing to address this point in their opposition to defendant's motion to dismiss, plaintiffs concede that they have failed to state a claim upon which relief can be granted. This is a second independent ground for granting defendant's motion to dismiss.
Based on the foregoing, we hold that plaintiffs have failed to demonstrate "a substantial case on the merits." Holiday Tours, 559 F.2d at 843. Indeed, plaintiffs' arguments are so contrary to the plain language of the SCA and its implementing regulations that they border on the frivolous. In view of this holding, we need not consider the other factors relevant to a grant of injunctive relief. See id. Since Cimpi has consistently failed to exhaust his administrative remedies, we lack subject matter jurisdiction. In addition, plaintiffs' complaint fails to state a claim upon which relief can be granted, and Wayman lacks standing.
Accordingly, it is by the Court this 5th day of June, 1990,
ORDERED that plaintiffs' motion for a preliminary injunction is denied; it is
ORDERED that defendant's motion to dismiss is granted; and it is
FURTHER ORDERED that this cause shall stand dismissed.