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Leboeuf, Lamb, Greene & Macrae, LLP v. Abraham

July 30, 2002


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos.: 122, 124, 134,




This lawsuit is one of many controversies generated by the federal government's decision to store the nation's nuclear waste in Yucca Mountain, Nevada. The plaintiff, LeBoeuf, Lamb, Greene & MacRae, L.L.P. ("LeBoeuf"), filed this lawsuit to protest the defendants' decision to award a contract for legal services regarding the licensing of the Yucca Mountain nuclear waste repository site ("Yucca Mountain") to Winston and Strawn, L.L.P. ("Winston"). The defendants are Spencer Abraham, sued in his official capacity as the Secretary of the Department of Energy, and the Department of Energy (collectively, "DOE"). This matter comes before the court on the plaintiff's and the defendants' cross-motions for summary judgment. The plaintiff claims that the defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., in awarding the Yucca Mountain contract to Winston. Specifically, the plaintiff alleges that DOE violated various rules and regulations controlling government-contract procurement and acted in bad faith. The plaintiff moves for a directed award of the contract at issue, attorneys' fees, and bid-preparation costs. In contrast, DOE argues that it acted appropriately and that the request for a directed award of the contract is moot because the contract no longer exists. For the reasons that follow, the court denies the plaintiff's motion for summary judgment and grants the defendants' cross-motion for summary judgment.


In this case, LeBoeuf protests DOE's awarding of a contract for legal services. Pl.'s Mot. for Summ. J. at 5. The defendants issued a solicitation on May 27, 1999 requesting legal services to assist DOE's Office of General Counsel in preparing a license application for Yucca Mountain and to represent DOE in proceedings before the Nuclear Regulatory Commission ("NRC"). *fn1 Id. at 6; Am. Compl. ¶ 26. The contract solicitation required that, along with the standard Department of Energy Regulations ("DEAR"), the bidders had to conform to a conflict of interest clause to prevent any possibility of a conflict of interest. Pl.'s Statement of Material Facts ¶ 12. In addition, a Technical Evaluation Committee ("TEC") evaluated the contract applicants' technical capabilities and their compliance with conflict of interest rules. AR Vol. 3, Tab 11 at 229. The contracting officer also had an obligation to review the applications for any conflicts of interest. Id.

Only two law firms, LeBoeuf and Winston, submitted bids in response to the solicitation. Am. Compl. ¶¶ 32-33. In the first round, LeBoeuf received a perfect technical score of 1,000 points, Winston scored 925 points, and the difference in the prices was negligible. Pl.'s Mot. for Summ. J. at 7. In a final round asking for best and final offers, both LeBoeuf and Winston scored 1,000 points on the technical aspect, but Winston's cost was $3.7 million lower than LeBoeuf's. Id. After both the contracting officer and the TEC reviewed Winston's application for any possible conflicts of interest, DOE awarded the contract to Winston. Defs.' Statement of Material Facts ¶ 29. Winston provided services pursuant to the contract until November 29, 2001, when Winston asked DOE to cancel the contract because "state officials and some others" questioned whether Winston's work for DOE and for other clients conflicted, and DOE agreed to cancel the contract. *fn2 Pl.'s Mot for Summ. J. Ex. 19 (letter from Winston to DOE), Ex. 20. DOE has not released a new solicitation for the remaining legal work. Frame Decl. at 2 .

LeBoeuf filed a bid protest with the General Accounting Office ("GAO") on October 4, 1999, claiming that prior legal services Winston provided for TRW Environmental Safety Systems, Inc. ("TRW") created a conflict of interest that disqualified Winston from the Yucca Mountain contract. Am. Compl. ¶ 38. In 1991, DOE contracted with TRW through a managing and operating contract ("1991 contract"). Pursuant to the 1991 contract, TRW had overall responsibility for administrating the Yucca Mountain Project from 1991 to 1999. Pl.'s Mot for Summ. J. at 6. TRW contracted with Winston to provide technical support services for the Yucca Mountain project to ensure their required compliance with the 1991 contract. Am. Compl. ¶ 19.

GAO denied LeBoeuf's protest, stating that Winston was eligible for the Yucca Mountain contract because the Yucca Mountain contract was a follow-on contract from TRW's prior contract with Winston (relating to the 1991 contract), thus negating any conflicts of interest. AR Vol. 4, Tab 27 at 9. Furthermore, GAO stated that it lacked jurisdiction over rules of professional responsibility. Id. at 10, n.7.

On March 27, 2000, LeBoeuf filed this administrative action review case in the United States District Court in Nevada, which transferred the case to this court on January 3, 2001. Pl.'s Mot. for Summ. J. at 7. This court denied the State of Nevada's motion to join the action as an intervening party on May 17, 2001 and also denied the plaintiff's second motion for preliminary injunctive relief on September 17, 2001. LeBoeuf, Lamb, Greene & MacRae, L.L.P., 205 F.R.D. 13; LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Abraham, 180 F. Supp. 2d 65 (D.D.C. 2001). The Nevada court granted Winston's motion to intervene, and then on January 29, 2002 this court granted Winston's motion to withdraw from the case. The plaintiff filed a motion for summary judgment on January 29, 2002 and the defendants filed a cross-motion for summary judgment on February 15, 2002. Both motions are ripe for review.


A. Legal Standard for Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F. 3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

B. The Plaintiff's Request for a Directed Award of the Yucca Mountain Contract Is Moot

The plaintiff has asked for relief in the form of a directed award of the government contract, attorneys' fees, and bid-preparation costs. Am. Compl. ¶ 5; Pl.'s Mot. for Summ. J. at 14; Pl.'s Response to Court Order Dated June 25, 2002 at 4. Yet, DOE and Winston agreed to cancel the Yucca Mountain contract on November 29, 2001. Pl.'s Mot. for Summ. J. Ex. 20. The plaintiff asserts that the solicitation does still exist and that the defendant will unlawfully attempt to reprocure the contract using the same solicitation. Pl.'s Opp'n at 28-29. In its motion for summary judgment, DOE argues that the court lacks jurisdiction over the plaintiff's request for a directed award of the Yucca Mountain contract because the contract no longer exists and thus the request is moot. Defs.' Mot. for Summ. J. at 30. In its reply, DOE argues that because the plaintiff never reiterated the request for bid-preparation costs asserted in the Amended Complaint, the only remedy the plaintiff seeks is a directed award, thus the entire case is moot. Defs.' Reply at 2-4. The plaintiff does, however, in a later submission filed in response to a court order asking about the requested relief, assert that it still seeks bid-preparation costs. Pl.'s Response to Court Order Dated June 25, 2002 at 1-4. Nevertheless, because the Yucca Mountain contract no longer exists, the issue of a directed award is moot. *fn3

1. Legal Standard for Mootness

Before a court may consider the merits of a case, it must determine whether it has subject-matter jurisdiction. The Supreme Court has held that Article III's case-or-controversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U.S. 83, 96 (1968). Courts can only rule on actual and ongoing controversies. McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 55 (D.C. Cir. 2001). Accordingly, a court may not rule on the merits of a case in which the claims for relief are moot.

A case is moot when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Albritton v. Kantor, 944 F. Supp. 966, 974 (D.D.C. 1996) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). An intervening factual event may render a claim moot because the change in circumstances deprives the plaintiff of a present right to be vindicated or causes the plaintiff to no longer have a stake in the outcome of the litigation. Aiona v. Judiciary of Hawaii, 17 F.3d 1244, 1248 & n.6 (9th Cir. 1994). The intervening event will render the case moot only if the event eliminates the effect of the alleged violation and there is no reason to believe the alleged violation will recur. Honig v. Students of the California Sch. for the Blind, 471 U.S. 148, 149 (1985).

If the plaintiff retains some personal stake in the controversy and there are some outstanding issues that a court may resolve, those claims may proceed for review even though an intervening event might have rendered other issues moot. Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1000 n.1 (4th Cir. 1997); accord McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 458-59 (6th Cir. 1997). The movant must also show that "interim relief and events have completely and irrevocably eradicated the effects of the alleged violation." Albritton, 944 F. Supp. at 974 (citing Davis, 440 U.S. at 631). The burden of establishing mootness rests on the party raising the issue, and it is a ...

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