Before Rader, Circuit Judge, Archer, Senior Circuit Judge, and Bryson, Circuit Judge.
The opinion of the court was delivered by: Rader, Circuit Judge.
Appealed from: United States Court of Federal Claims Judge Christine O.C. Miller
On the motion of RAMCOR Services Group, Inc. (RAMCOR), an incumbent contractor, the United States Court of Federal Claims issued a preliminary injunction preventing the Immigration and Naturalization Service (INS) from awarding a contract to a new contractor. RAMCOR subsequently filed an action under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1994), for attorney fees and expenses in obtaining the injunction. The Court of Federal Claims denied RAMCOR's application, reasoning that it lacked jurisdiction to issue the preliminary injunction and, even if it had jurisdiction, RAMCOR was not entitled to an EAJA award on the merits. See RAMCOR Services Group, Inc. v. United States, 41 Fed. Cl. 264 (1998). Although the trial court possessed jurisdiction to issue the injunction, this court affirms its exercise of discretion in denying an EAJA award on the merits.
RAMCOR had a contract with INS to provide maintenance and support services at the Border Patrol Academy in Charleston, South Carolina. Upon discovering the impropriety of its five-year contract to RAMCOR, INS decided to award a new contract. After two six-month extensions of the contract, INS began a new contract award process. In its initial evaluation, INS excluded RAMCOR from the competitive range because of inadequacies in its proposal.
RAMCOR filed a pre-award bid protest with the General Accounting Office (GAO). That protest triggered an automatic stay under the provisions of the Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551-56 (1994), prohibiting INS from awarding a new contract pending a decision on the protest. See 31 U.S.C. § 3553(c)(1). CICA, however, also allows an agency to override the automatic stay if it issues a written finding that "urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting" for the bid protest decision. 31 U.S.C. § 3553(c)(2). INS issued a written "Determination and Finding" setting forth purported urgent and compelling circumstances. Having overridden the stay, INS awarded the contract to OMNI-CUBE. Citing deficiencies in the written findings, RAMCOR sought a preliminary injunction in the Court of Federal Claims to prohibit INS from allowing OMNI-CUBE to act under the newly awarded contract.
The Court of Federal Claims granted the preliminary injunction. In issuing the injunction, the trial court noted: "[INS has] not established the precipitous decline in performance that manifests an urgent and compelling need to override the GAO stay." RAMCOR Services Group, Inc. v. United States, No. 98-152C (Ct. Fed. Cl. Mar. 9, 1998) (order granting preliminary injunction). The trial court thus reinstated the stay pending a GAO decision. INS moved to quash the injunction, arguing that the Court of Federal Claims lacks subject matter jurisdiction to review an agency's override of a CICA stay. In a later hearing on the INS motion, the trial court informally suggested that INS should pay part of RAMCOR's fees. The trial court again noted INS's failure to produce evidence to substantiate the alleged urgent and compelling reasons for its stay override. A few days later, the GAO decided against RAMCOR on the merits of its bid protest. The Court of Federal Claims, therefore, lifted its injunction and dismissed the action without deciding the pending jurisdictional motion.
Citing its success in obtaining a preliminary injunction, RAMCOR filed an application for attorney fees and expenses under EAJA. That Act allows a party who prevails in a civil action against the United States to recover fees and expenses, subject to certain conditions satisfied by RAMCOR. See 28 U.S.C. § 2412(d). EAJA, however, also specifically requires that civil action to arise in a "court having jurisdiction of such action." Id. The Court of Federal Claims thus examined its subject matter jurisdiction over the underlying action --the request for injunctive relief from INS's override of the CICA stay. Only if it possessed this jurisdiction could the trial court make an EAJA award. The trial court concluded that it lacked jurisdiction to issue the preliminary injunction and, accordingly, dismissed the EAJA action.
In the alternative, the trial court also decided the merits of RAMCOR's case. Once a prevailing party satisfies the EAJA requirements of 28 U.S.C. § 2412(d)(2)(B), the burden shifts to the Government to show that its litigating position was "substantially justified." Such a showing precludes an award of fees and expenses to a prevailing party. See id. The Court of Federal Claims found that the Government had shown a substantial justification and denied an EAJA award.
RAMCOR appeals. On appeal, RAMCOR contends both that the Administrative Dispute Resolution Act of 1996 (ADRA), 28 U.S.C. § 1491(b), gives the trial court jurisdiction over RAMCOR's underlying claim, and that the Government was not substantially justified in its litigating position.
The jurisdiction of the Court of Federal Claims is a legal issue reviewed without deference by this court. See Crocker v. United States, 125 F.3d 1475 (Fed. Cir. 1997). This court reviews the trial court's decision not to award fees and costs under the standards of EAJA for an abuse of discretion. See Chiu v. United States, 948 F.2d 711, 713 (Fed. Cir. 1991) (citing Pierce v. Underwood, 487 U.S. 552, 557-63) (1988)).
As a predicate to an EAJA award, the awarding court must have had jurisdiction over the civil action in which the applying party prevailed. See 28 U.S.C. § 2412(d)(1)(A). RAMCOR asserts that amendments to 28 U.S.C. § 1491 under the ADRA granted the Court of Federal Claims jurisdiction over RAMCOR's action for a preliminary injunction. The relevant provision reads, in pertinent part:
"Both the Unite[d] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. § 1491(b)(1) (emphasis added). In the underlying action, RAMCOR objected to INS's 31 U.S.C. § 3553(c)(2) override of the automatic stay triggered by RAMCOR's appeal to the GAO, see 31 U.S.C. ...